6.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 do not consider whether legal action would succeed, only whether it was/would be a reasonable option to look in to.
7. In general terms, clinical negligence takes place when a person suffers harm because of mistakes in their care and treatment. Failure to carry out appropriate treatment can also amount to negligence. Clinical negligence can only by established in the courts. Cases where people are seeking to establish that medical negligence occurred and to obtain compensation for that, are more suited to the legal process than ours.
8. Mrs A believed her husband’s care was negligent. She believed he had been put at considerable risk, suffered serious harm, in fact may have lost his life, directly because of significant fallings in his care. She was seeking to establish that Mr A’s care had been negligent, and she wanted to obtain a ‘substantial settlement’ for that. In that context she did the right thing, we think, by exploring legal action as that was the most appropriate means for her to achieve the specific outcomes she was seeking.
9. Mrs A’s solicitor submitted a letter of claim to the Trust on 12 October 2022. Mrs A subsequently agreed to settle the claim, out of court, for a £5750.
10.In relation to the GP practice, Mrs A’s solicitor provided the following information -
" We considered the case against both the GP and the James Paget University Hospital. It was our opinion that the strongest case was against the hospital. If we were not successful against the hospital, our advice was to then consider pursuing a claim against the GP. Ultimately, this was not necessary.’
11.In terms of the legal test that we need to apply in all cases (point 5 above), Mrs A’s actions as outlined above demonstrated to us that she did have the option to take legal action to resolve her complaint, that it was not unreasonable to expect her to take it, that she did take it, and that she concluded the action she took on terms that were acceptable to her.
12.Mrs A commenced the legal process. She could have pursued it further. She chose instead to settle her claim out of court with the Trust and chose not to take any action against the GP practice. Had the claim not been settled, a court would have been able to carefully consider and assess whether Mr A’s care was negligent and whether his death could be attributed to that, as well as determining where ‘full accountability’ lay, including awarding an appropriate amount of compensation if applicable.
13.Mrs A had the option to take legal action to establish what she is asking us to establish (that Mr A’s death was avoidable and due to medical negligence), and to obtain what she is asking us to obtain for her (financial compensation for medical negligence). She started that legal process and concluded it, settled it, at the time of her choosing. With the law in mind, we decided it would be inappropriate for us to further consider the same matters.
14.Another aspect of her complaint was that Mrs A told us she wanted to be reassured that measures have been taken to prevent the same thing happening again. We noted that the GP practice had carried out a ‘significant event’ investigation at the time and shared the findings with Mrs A. We think that shows that the GP practice took what happened seriously and acted appropriately in considering whether any lessons could be learned from it.
15.In relation to the Trust, we noted that in addition to the legal settlement Mrs A reached with it, that when she complained the Trust accepted there had been some failings in Mr A’s care, apologised for those, and explained what it had done, or would do, to try to improve its services to make it less likely the same thing would happen again. For instance, it acknowledged that Mr A’s wait for a scan had been too long and the impact this had on him and Mrs A, it explained that pathways of care were being reviewed nationally to improve services, and it confirmed that additional staff (radiologists) had been employed and new equipment (a scanner) secured. The Trust accepted that those changes did not alter Mr A’s experience but sought to offer her reassurance that they would help others in the future.
16. We think the actions taken by the GP practice and the Trust in light of Mr A’s experience seem unreasonable to us. Both appear to have considered whether service improvements could be made and, where appropriate, sought to make them and to explain what those were to Mrs A. We are also aware that the events Mrs A is complaining about occurred in the first half of 2021, three and half years ago, and that things, including personnel changes, will have changed since then.
17.If Mrs A still has concerns about the quality of services being provided at either the GP practice or the Trust currently, the appropriate organisation for her to raise those concerns with is the Care Quality Commission (the CQC). We do not inspect services on the ground or regulate whether those services are fit for purpose. That is the CQC’s role. This is not something we can help Mrs A with.
18.Mrs A told us she would like the Trust doctors responsible for the failings in her husband’s care to be reprimanded, including being struck off. We have no power to reprimand, or discipline, NHS staff, or to strike off doctors. We cannot help Mrs A in this regard in the way that she wants. If she has concerns about a doctor’s fitness to practice, she can raise those directly with the organisation responsible for the doctor’s registration, usually the General Medical Council (the GMC).
19. Mrs A told us she would like our findings to be shared with the press. We do publish many of our decisions and we have provided more information to her about this in the covering letter accompanying this document.
20.In summary, we decided to take no further action on this complaint because we considered that Mrs A had an alternative legal route available to her which it was appropriate for her to explore, and which has explored. The other issues she raised in her complaint were not things we could help her with. We hope we have explained the thorough consideration we have given to our decision and clearly outlined the reasons for it.