Ashford and St Peter's Hospitals NHS Foundation Trust

3. From November 2015, Mrs J complains consultants at both organisations delayed diagnosing the cause of her husband’s breathlessness until 18 January 2023, when they found a pulmonary arteriovenous (PA) malformation.

4. She also complains staff at St Peter’s Trust discharged her husband from hospital on 15 February 2023, when he had low oxygen levels.

5. Mrs J says the delay finding the PA malformation meant her husband lost the chance to have prompt treatment for it. Because of this, his breathlessness deteriorated from 2015. This meant he lost the ability to play golf and do things with his family, and he was reliant on supplemental oxygen and a wheelchair to mobilise by the time staff diagnosed him. She also says having treatment would have prevented his death.

6. She says her husband’s hospital discharge left him without the level of oxygen he needed. This meant his condition deteriorated more quickly. Therefore, he died before the appointment he had scheduled at St Thomas’ Trust on 3 March 2023 where staff planned to investigate his PA malformation further and consider surgery.

7. Mrs J wants the organisations involved to make improvements to prevent a repeat of the events in her husband’s case. She wants them to acknowledge what went wrong, apologise about the impact, and a financial remedy.

10. 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.

11. We discussed this with Mrs J to understand her 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.

12. Mrs J complains about delays in diagnosis and her husband’s discharge from hospital. She links these events to his death and his worsening health before he died. One of the outcomes she seeks to address this injustice is financial remedy.

13. Through a clinical negligence claim, a court could recommend financial remedy for this injustice. As her husband’s spouse, Mrs J may also be able to obtain financial remedy for bereavement through legal action under the Fatal Accident Act 1976. Therefore, we saw legal action available to her in which she may be able to obtain financial remedy.

14. We decided it is reasonable for Mrs J to explore taking legal action. We explain why below.

15. We saw Mrs J’s other outcomes (which we set out in paragraph five) are not ones which are normally achievable through legal action. That said, we must still consider whether legal action is appropriate even when some of the outcomes the complainant wants are not achievable through legal action.

16. This includes considering whether the financial remedy they want is an amount we are likely to recommend for the injustice they allege. If a complainant seeks more than we can recommend, we are more likely to consider it is reasonable for them to pursue legal action.

17. We are also mindful the courts can make wide ranging recommendations. A complainant may achieve their other outcomes as a byproduct of legal action. They can also return to us after taking legal action with any outcomes they did not achieve (and could not achieve) through the courts.

18. We discussed Mrs J’s expectations regarding financial remedy and how much she wanted. She confirmed she had no specific amount in mind.

19. As she had no specific figure in mind, based on our Guidance on Financial Remedy, we explained the amounts we might recommend if we investigated and found the injustice she alleged. We also explained how we may recommend a lesser amount if we found a less severe injustice.

20. We asked whether such amounts would be a satisfactory financial resolution for Mrs J, and whether she accepted the amount could be less depending on what injustice we might find.

21. Mrs J told us these amounts would be enough for her. She also said her husband had three sons. She added any financial remedy would mainly be for them and their grandchildren. She said two of these sons strongly supported her complaining.

22. Although Mrs J told us the amounts we can recommend are enough for her, after carefully considering what she said, we saw what we can recommend would not match the expectations she described.

23. We saw any financial remedy is not only for her, but several other family members. This includes three of her husband’s sons, and grandchildren on top of that. She said she wanted to share a significant proportion of any financial remedy with these people.

24. Our powers in recommending financial remedy mean we have rigid limits in how much we can recommend. If we went on to recommend what we can for the injustice Mrs J alleges, and she distributed it in the way she described to us, this would mean less financial remedy for each family member. This includes Mrs J.

25. On this basis, we saw we could not recommend the amount Mrs J told us she seeks. In effect, any such recommendation would equate to a smaller amount for her.

26. Therefore, we decided the amount of financial remedy she is seeking is more than the amounts we can achieve. Pursuing legal action may be the only way to secure financial remedy for other family members while also obtaining the level of remedy Mrs J told us she wanted.

27. We gathered information on Mrs J’s ability to pursue legal action to consider whether it is reasonable for her to take it.

28. Mrs J told us she may find the process of taking legal action difficult, and she would find it emotionally challenging. However, she did not see reasons she could not explore legal action to get a financial remedy. If she needed to take a legal route to get it, she would.

29. We recognise the process of making a complaint can be difficult, especially on emotive events surrounding the death of a family member.

30. We noted these difficulties apply both in raising a complaint with us, and when doing so through legal means. As Mrs J engaged with us in raising the difficult matters within her complaint, we saw no reason she could not do this with solicitors too.

31. As she gave no other reasons she could not explore legal action, and she can and will explore it if necessary, we did not see factors which meant she does not have the ability to do so.

32. Therefore, as legal action is the only route where she is likely to obtain the financial remedy she seeks for her and her family, and we saw she is able to explore it, we decided it is reasonable for her to do so. This means we cannot consider her complaint further.

33. We recognise this may be a disappointing outcome for Mrs J. We understand she approached us in the hope we could consider her case and achieve the outcomes she wanted.

34. We hope this statement clearly explains our decision and how we considered her complaint. We hope it assures her we carefully considered her outcomes and what we can achieve before we reached our decision.

1. We recognise Mrs J has been through a very difficult time. Over several years, she told us her husband’s health worsened, and this affected his ability to do the things he enjoyed with his family. We can only begin to imagine how upsetting this was for Mrs J.

2. We carefully considered Mrs J’s complaint. Having done so, we decided it is reasonable for her to pursue legal action on the matters she raised with us.