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 Mrs A 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.
13.This translates into our own policy, the service model guidance and referred to as a ‘two stage legal test’ that we must look at before any consideration of a complaint. The two stages being are, is there a legal route and is it reasonable for the complainant to pursue?
Is there a legal route?
14.In reaching our view, we consider if a complainant has an opportunity to pursue their complaint legally. We refer to this as an ‘alternative legal remedy’ in relation to their complaint, based on the remedy they are seeking, one that a court could reach determination on.
15.Mrs A detailed in her complaint form to our office that she would be looking into legal action for claimed clinical negligence. The clinical negligence that Mrs A is alleging is significant and in relation to being given the incorrect blood type via transfusion and a surgical drain was left in her stomach following her caesarean section on 7 July 2022. This has led to her being left in constant pain due to the issues in her stomach which she still experiences to this day.
16.Mrs A is therefore alleging clinical negligence that directly led to injury to herself. Mrs A stated during a call with our office that she would be looking for compensation of at least £15,000 minimum as this was her annual salary. She has not been able to work for a year. She would also be looking for further financial compensation regarding the injuries she has suffered, and this is likely to escalate the financial redress sought as this would be loss of earnings or compromised earnings for future years. Mrs A is also aware that we would expect a complainant to pursue a legal route before coming to our office unless it’s unreasonable for them to do so.
17.Some of the points of Mrs A’s complaint would not be deemed as potential clinical negligence such as an inappropriate voicemail left for her from a consultant on 28 June 2023. However, it is clear from speaking to Mrs A that the main focus of her complaint, the primary issue, is the serious claim of clinical negligence relating to the incorrect blood given to her and the surgical drain left in her stomach following her Caesarean section. If there are any outstanding outcomes that cannot be achieved through the legal claim or Mrs A would like us to look at issues separately after legal action has concluded, she can bring the complaint back to us to consider further.
18.We do not consider whether legal action would succeed. Mrs A is looking for compensation of at least £15,000 based on a claim of significant clinical negligence, with further finances she explains, this could be significantly more.
19.When considering financial remedy, we refer to our own scale of severity which gives the Ombudsman the consistent opportunity to look at claimed impact and where it sits on the six bands of injustice which range from low level (level one) to significant avoidable death and disability (level six). Level six of our scale is for financial remedy of £12,500 and above.
20.Thus, though at this stage we may consider her claim could be anything ranging on the scale up to level six what remains is her claim of clinical negligence is based not just around one year’s loss of earnings but compromising her ability to work and the suffering had. We understand this will be a figure significantly more. Therefore, based on the amount Mrs A is seeking, we consider this could be achieved through legal action. This is the only outcome sought from this complaint.
21.Should clinical negligence be proven through legal action, the compensation could be a very significant sum. A claimant has three years from the date of accrual of the action or the date of knowledge of damage to make a claim for clinical negligence. A solicitor would be able to review this with Mrs A. However, the issues Mrs A complained about occurred on 7 July 2022. Therefore, Mrs A has until at least July 2025 to make a clinical negligence claim and is therefore in time to do so.
Is it reasonable to pursue a legal claim?
22.Next, after establishing there is a legal route, we have gone onto explore with Mrs A if it is reasonable for her to pursue. When considering reasonableness, the factors we take into account are based on the individual circumstances of a complaint.
23.We spoke with Mrs A by phone regarding legal action. She explained that she had spoken with her husband regarding an intent to taking legal action and queried if it would be stressful to take legal action. We explained that often pursuing a legal remedy though the courts will involve having a dedicated solicitor/ legal professional on a case who has a vested interest in winning the case. Though we cannot provide advice on the legal process, it is not unreasonable to note in conversation the solicitor is there as a ‘representative’ to support and guide the claimant as their ‘appointed’ legal person.
24.During our conversation on reasonableness, Mrs A did not detail any other barriers that would prevent her from being able to take legal action and stated during our call that she would be happy to do so in order to achieve the financial redress sought. Clinical negligence claims can be undertaken on a no win no fee basis which Mrs A has made clear that she will pursue.
25.Mrs A also made clear during our call that she has not been able to work for a year and still cannot. Legal action would be able to pursue compensation in recognition of this plus injuries suffered.
In conclusion
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 Mrs A to understand her outcomes and if it is reasonable to pursue legal action.
27.Mrs A has until July 2025 to seek legal advice and pursue legal action if legal advice confirms she has a claim. We do not want to disadvantage Mrs A with regards to the amount of compensation she could achieve via legal action or the time she has to make such a claim. We may not be able to achieve the amount that legal action could achieve. Mrs A has the option to refer the complaint back to us if legal action is not an option for her.
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 Mrs A’s complaint is the incorrect blood type given and surgical drain incorrectly left in her stomach. If legal action does not bring a resolution to all the parts of her complaint, then Mrs A can bring those parts of her complaint back to our office.
29.We consider Mrs A has an alternative legal remedy available for the main part of her complaint. We also consider it is reasonable for her to pursue this. Therefore, this complaint by Mrs A has an alternative legal remedy. We have provided Mrs A with the details of different organisations who can provide assistance to her with a legal claim.
30.We have made Mrs A aware that she can return to us with any outcomes not achieved through the courts afterwards. There are time limits to the Ombudsman considering complaints (details can be found here https://www.ombudsman.org.uk/making-complaint/what-we-can-and-cant-help)
31.Should legal action not be available to Mrs A, then she can contact our office directly by contacting her caseworker by email or phone. In approaching solicitors please keep correspondence, names and account of activities. If Mrs A returns to us unable to pursue a legal route, then we may need to satisfy that this legal route has been exhausted.
32.For the reasons we have provided, we shall take no further action on the complaint as an alternative legal route exists and is reasonable to pursue.
33.We recognise the impact this has had on Mrs A and appreciate how difficult it has been for her to speak about the events that occurred within this complaint.