12.The law (HSCA 1993) 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 Mr A to understand his circumstances and the outcomes he wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
Is there a legal route?
13.In reaching our view, we consider if a complainant has an opportunity to pursue the complaint legally. We refer to this as an ‘alternative legal remedy’ in relation to the complaint, based on the remedy they are seeking, one that a court could reach determination on.
14.Mr A stated during our call that he only became aware of titanium screws being used in his surgeries after being informed by a consultant general surgeon during a review meeting on 13 September 2022. He also became aware of mesh being placed on top of existing mesh in the wrong place during this same meeting. Mr A states he had no idea prior to this. Therefore, his date of knowledge of damage would be 13 September 2022. Claims of clinical negligence have a three-year limitation period from the date of the Claimant’s knowledge of damage or the date of accrual of the action (whichever expires later).
15.The main part of Mr A’s complaint is that titanium screws were used in surgeries on 9 July 2010 and 31 May 2013 and mesh placed on existing mesh during surgery on 9 July 2010 which he was not aware of. Mr A says that this has left him in severe pain for the rest of his life and he has scar tissue in his abdomen and nerve damage. This has also taken a toll on his mental health.
16.Mr A is therefore alleging clinical negligence in that he was left injured as a result of surgeries performed at the Trust, of which he was not made aware of what the surgeries would include. He therefore feels he was not able to make an informed choice whether to go ahead with the surgeries.
17.We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
18.Should clinical negligence be proven through legal action, the compensation could be a very significant sum. We are unlikely to be recommend financial remedy at the same level as that which can be achieved through legal action. Mr A stated in an email on 5 August 2024 that he would be seeking to achieve financial remedy of level 6 on our severity of injustice scale.
19.Our severity of injustice scale allows us to ensure the recommendations we make are consistent and transparent for everyone who uses our service. The figures included in the scale represent the Ombudsman’s judgement about the sort of sums that are both appropriate and proportionate for us to recommend. The scale contains six different levels of injustice that a complaint could fall into, which increase in severity. Each level is then linked to a range of the financial amounts we would usually recommend in those circumstances.
20.Mr A has listed severe side effects of his surgeries including being left in lifelong pain, nerve damage and effects on his mental health. Should a claim of clinical negligence be successful, then compensation would likely be of a far higher amount than we would recommend and assist Mr A for the rest of his life in dealing with these side effects.
21.Some of the points of Mr A’s complaint would not be deemed as potential clinical negligence such as not receiving sufficient explanations of the surgeries and potential side effects. However, it is clear from speaking to Mr A that the main focus of his complaint, the primary issue, is the surgeries performed with titanium screws and mesh placed on existing mesh which he feels was unsuitable and has led to the serious side effects he suffers to the present day. If there are any outstanding outcomes that cannot be achieved through the legal claim or Mr A would like us to look at issues separately after legal action has concluded, he can bring the complaint back to us to consider further.
Is it reasonable to Pursue?
22.Mr A did not detail any issues that would prevent him from being able to take legal action other than not having savings to pay for a claim up front. However, clinical negligence claims can be undertaken on a no win no fee basis which Mr A is aware of.
23.Mr A stated during a local resolution meeting with staff from the Trust that he would be seeking legal advice to pursue a claim for compensation as detailed in a letter sent to him on 25 September 2023. During our call, Mr A stated he had considered a legal claim but had been told that the Ombudsman was the next step. He also said he had not spoken to any solicitors but would be happy to do so to get his complaint resolved.
24.The outcomes sought of financial remedy and an explanation of what happened could be achieved through legal action.
25.Thus, there may be a claim for clinical negligence and in our two-stage test next asking ‘is it reasonable to pursue?’ we can see through engaging with Mr A that he has considered a legal claim for clinical negligence but has not pursued this as of yet. Although he does not have the savings to pay for a legal claim up front, he is aware of no win no fee solicitors and would pursue a claim to get his complaint resolved. Therefore, we consider it is reasonable for him to pursue this first based on his discussed intentions.
26.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 engaged with Mr A to understand his outcomes and if reasonable to pursue legal action.
27.Mr A has until September 2025 to seek legal advice and pursue legal action if legal advice confirms he has a claim. We do not want to disadvantage Mr A with regards to the amount of compensation he could achieve via legal action or the time he has to make such a claim. We may not be able to achieve the amount that legal action could achieve. Mr A has the option to refer the complaint back to us if legal action is not an option for him.
28.We would not consider it fair to the Trust to potentially have to deal with two concurrent investigations if we were to investigate at the same time as legal action taking place. The main part of Mr A’s complaint is improper surgeries which left him with lifelong injuries. If legal action does not bring a resolution to all the parts of Mr A’s complaint, then he can bring those parts of his complaint back to our office.
29.Mr A can return to us with any outcomes not achieved through the courts afterwards. However, there are time limits to the Ombudsman considering complaints (details can be found here https://www.ombudsman.org.uk/makingcomplaint/what-we-can-and-cant-help) and therefore Mr A should bring his complaint back to us promptly should legal action not be available.
30.For the reasons we have provided, we shall take no further action on the complaint as an alternative legal route exists for the main part of this complaint and is reasonable to pursue. Therefore, this complaint by Mr A has an alternative legal remedy. We recognise the impact these events have had on Mr A and we appreciate it may have been difficult for Mr A to speak about the events that occurred within this complaint.