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 Mr B 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.
12. Someone can make a clinical negligence claim if they complain about poor clinical care which leads to harm. In these claims, a court can recommend financial compensation for this kind of injustice. Therefore, we saw available legal action in which Mr B may be able to obtain financial remedy.
13. We appreciate, as the courts decide whether financial compensation is appropriate, they do not normally make recommendations regarding service improvements. This is the other outcome Mr B wants, which we gave further thought to.
14. Mr B told us the Provider introduced new procedures following the events in his complaint. Despite this, he did not feel assured the Provider has improved its service. He is worried its staff may make the same mistakes they made during Mrs B’s care.
15. Where things go wrong, our Complaint Standards say appropriate actions organisations can take to learn lessons from the events include:
• revising policies and procedures to stop the same thing happening again • training or supervising staff.
16. We saw the Provider has already taken actions like this. Following Mr B’s complaint, the Provider decided to implement the NEWS system in its endoscopy units. It did not have NEWS in place before.
17. The Provider did this so staff could use NEWS to monitor patients, particularly after their endoscopic procedure. It hoped this would allow staff to make better observations and improve patient safety in the future.
18. The RCOP Guidance says NEWS standardise the process of recording, scoring, and responding to changes in routinely measured physiological parameters. NEWS aim to detect and respond to clinical deterioration. Staff can use NEWS to track a patient’s clinical condition, alert the clinical team to any deterioration, and trigger a timely clinical response.
19. The Provider explained, in implementing NEWS, its staff now have training in using this system. Within the training it arranged, the Provider emphasised its staff must document any abnormal presentations or symptoms in a patient’s clinical records alongside their NEWS and report them.
20. This included symptoms like the ones it acknowledged Mrs B’s family reported after her procedure, but staff did not record. That was, her vomiting and swelling in her neck.
21. The Provider arranged training workshops for its endoscopy teams they had to attend. The workshop was based on the events in Mrs B’s care. The training covered signs staff should look out for that indicate perforation caused by endoscopic procedures. It also covered how staff should escalate such concerns to senior clinicians, including that nurses could escalate concerns without the agreement from a doctor.
22. Therefore, we saw the Provider has taken the improvement actions we would expect that we set out in paragraph 15.
23. Faced with a similar situation in the future, we consider these actions will help staff to assess and respond to the factors they missed in Mrs B’s case. This is likely to help avoid another patient experiencing a delay in getting treatment for any perforation associated with an endoscopic procedure.
24. On this basis, we cannot see there is more we can achieve regarding service improvements. This leaves the remaining outcome Mr B wants. That is, financial remedy.
25. We should consider whether legal action can achieve all the complainant’s outcomes.
26. Legal action could achieve Mr B’s remaining outcome. He seeks financial remedy for a serious injustice. He told us any financial remedy would not be just for him, but other family members too.
27. The courts have greater powers than us and can recommend higher levels of financial remedy. Therefore, the courts are better placed than us to achieve this outcome for Mr B. For such a serious alleged injustice, we consider the cost of Mr B taking legal action is less likely to be disproportionate relative to the compensation a court may recommend.
28. We did not see factors preventing Mr B exploring legal action further. While he told us he did not want to take legal action, he confirmed he consulted a solicitor soon after his mother died.
29. We appreciate he told us the solicitor doubted the credibility of his case, and they said consulting experts as part of a claim may be costly. However, this was the view of one solicitor. We also saw the coroner later linked perforation to Mrs B’s death and asked the Provider to take action to prevent future deaths.
30. Therefore, we do not consider Mr B has explored legal action as fully as he should, and we cannot see factors preventing him exploring it further. On this basis, we decided it is reasonable for him to pursue this further to try and achieve the financial outcome he seeks. This means, by law, we cannot consider his complaint further.
31. We recognise this will be a disappointing outcome for Mr B. We understand he approached us in the hope we could consider his case and achieve the outcomes he wants.
32. We hope this statement clearly explains our decision and how we considered Mr B’s complaint. We hope it assures him we carefully considered his outcomes and what we can achieve before we reached our decision.