2. Mrs U complains the Practice failed to advise her that her orthopaedic referral was rejected between January 2023 and February 2024.
3. Mrs U says the Practice failings meant there was a missed opportunity to receive branch block injections. She also says she struggled with severe pain, which resulted her to use a wheelchair. Mrs U also says the failings caused a deterioration to her mental health.
4. Mrs U is seeking an apology and financial remedy.
7. We have carefully considered the available information. The law says we cannot investigate a complaint where a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances. We have discussed this with Mrs U to understand the circumstances and the outcomes she wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
8. NHS Resolution’s website explains ‘If the treatment you received fell below a minimum standard of competence and you suffered an injury as a result, and it is more likely than not that the injury could have been avoided or less severe with proper treatment then you may be able to take legal action for compensation.’ This is referring to a possible legal route for medical negligence.
9. Mrs U says a failing in the duty of care provided by the Practice by not informing her the referral was rejected meant a missed opportunity for her to have the branch block injections. She also says this meant she was left in severe pain for a longer period than necessary. As a result of these failings, Mrs U is seeking financial remedy, so it appears there may a clinical negligence case is open to her, and she would need legal advice to further understand this.
10. As such, we need to consider whether it is reasonable for her to pursue the matter in that way. In doing this we have considered the outcomes Mrs U wants, and whether we are likely to recommend it in relation to the injustice claimed. She is looking for a financial remedy and apology. We discussed the figure she is hoping to achieve, by sharing our Severity of Injustice scale with her. She put her complaint at level 4 of our SOI scale (£1,250-£3,700) and is seeking compensation for the impact she believes the Practice has caused her.
11. If we were to consider the complaint and find failing and link it to the impact she has described, we would likely place her case at level 4 (£1,250-£3,700). Our SOI states a case a case at level four will involve the person affected experiencing a significant and/or lasting impact, so much so that to some extent it has affected their ability to live a relatively normal life. Mrs U has explained the failings of the Practice left her in severe pain, for which she had to use a wheelchair. This may have been avoided as she would have benefited from the branch block injections, which were rejected as she was on the waiting list to be seen by the Orthopaedic. However, we need to establish a failing caused the impact, and therefore our financial remedy may be lower than this depending on what we can link. We note she is also looking for an apology and that is achievable through our process.
12. The law says if there is a legal remedy available it should be pursued unless it is not reasonable. We therefore carefully considered whether there are any reasons that would make exploring taking legal action not a reasonable option. To do that we considered whether legal action would address what Ms E is trying to achieve. Legal action could allow for a financial remedy. Furthermore, it is more likely to lead to a higher award (covering general and special damages) and whilst an apology (her other desired outcome) would not be directly achievable through that process it is a likely side effect of successful legal action.
13. Lastly, we discussed whether there are any barriers in taking legal action. Mrs U confirmed she had not approached any legal firms. Mrs U then explained she would find the legal process hard to deal with, however we explained the process of pursuing legal action is similar to ours and to complete the process of exploring no win no fee solicitors first. We note that as they would be acting on her behalf it is likely this would not be too challenging, and interaction is likely to be by telephone and email in the first instance in a similar way to our own. We also note that a significant amount of claims are settled before reaching court so this also may not have any additional stress associated.
14. Considering the available information, the availability of a legal remedy, what they are looking to achieve and in the absence of any specific barriers we are persuaded it is reasonable that legal remedy should be explored fully in this case first at this time.
15. We appreciate that this is not an easy time for Mrs U as she is still experiencing ongoing issues with her health. We hope that our decision explains why it is better to explore taking legal action as the best way to achieve the outcomes she wants. If, however, unsuccessful she can return to us in a timely manner, and we can consider the complaint.
1. We have carefully considered Mrs U’s complaint about a practice in the Kent area (the Practice). We are sorry to learn about the ongoing difficulties Mrs U experienced whilst waiting for a referral. Having reviewed the available evidence, we consider Mrs U could take legal action on the matter she has bought us.