University Hospitals Birmingham NHS Foundation Trust

3. Mrs A complains about aspects of care provided to her by the Trust. Specifically, she complains that:

• on 29 May 2021, during a ureteroscopy the Trust caused a tear or perforation on her kidney or ureter which it did not detect • whilst an inpatient at the Trust between 8 June 2021 and 11 June 2021, the Trust withheld pain medication on multiple occasions.

4. Mrs A says the Trust’s failings in the initial ureteroscopy caused a tear in either her kidney or ureter. Due to this, she says she suffered with physical pain and a very high temperature for a number of days.

5. Mrs A further says due to the errors made in the ureteroscopy, this led to her having to undergo a nephrostomy on 8 June 2021, which would not have otherwise been needed. Mrs A says the nephrostomy led to her suffering further complications, including a haematoma which caused her to feel extreme pain in her back and flank and damage to her kidney. She says her kidney has been affected to such an extent that it now only functions at 17%.

6. Mrs A also suffers from back pain and anxiety around her overall general health in the future such as urinary complaints, hypertension and possible kidney removal, which she says is a result of these failings.

7. Mrs A also says the lack of pain medication caused her to suffer extreme physical pain to her back and flank area while she was a patient at the Trust.

8. As an outcome to the complaint, Mrs A would like service changes and a financial remedy in excess of £12,500.

9. On 29 May 2021, Mrs A attended the Trust for a ureteroscopy due to hydronephrosis. A ureteroscopy is a procedure to remove stones in the ureter. Hydronephrosis is a condition where one or both kidneys become stretched and swollen as a result of a build-up of urine inside them.

10. Mrs A says after the surgery she began experiencing pain but was discharged on 30 May without the Trust investigating the cause of the pain. The same day Mrs A was able to get an out of hours doctor’s appointment and she was diagnosed with a urine infection and prescribed antibiotics.

11. On 6 June, Mrs A was experiencing pain together with fatigue, high temperature, hypotension and other symptoms. She attended the emergency department at the Trust, who transferred her for further assessment.

12. On 7 June, she was due to go for an ultrasound scan, but this was delayed as Mrs A says the Trust had failed to notify her she needed to be nil by mouth. The Trust undertook the ultrasound scan the following day. The scan results showed there appeared to be a collection of blood or a burst abscess around the right kidney, but the Trust was unsure. Although it was going to discharge Mrs A with this diagnosis, a consultant wanted to perform a CT scan.

13. On 8 June, the Trust performed a CT scan and after the result of the first scan, the Trust sent Mrs A for a second CT scan. The scan results showed there was a tear in Mrs A’s right kidney and there was a collection of urine.

14. The Trust arranged an emergency nephrostomy on the same day. After this procedure, the Trust found a haematoma due to Mrs A still experiencing severe pain. A haematoma is a pooling of blood inside a body.

15. Following this, and until the Trust discharged Mrs A on 11 June, she says on multiple occasions the Trust withheld pain medication.

18. 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 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.

19. Mrs A raised concerns about the clinical care and treatment provided by the Trust. Specifically, Mrs A believes the Trust has failed in its care towards her during the ureteroscopy on 29 May 2021.

20. Mrs A says as a result of Trust failings during surgery, she had to undergo further surgery, and she has been left with an extremely damaged kidney which now only functions at 17%. She also says she has experienced unnecessary pain which otherwise would not have occurred.

21. When considering Mrs A’s complaint, it appears there may be a legal remedy available to her through the courts. This is because she believes the Trust failed to complete both the ureteroscopy in line with guidance.

22. As an outcome to her complaint, Mrs A has told us she is seeking a financial remedy and service changes. When we explored this with her, she told us she was seeking a financial remedy in excess of £12,500.

23. It appears that both we and the courts could potentially achieve the outcomes Mrs A is seeking. We recognise we could recommend the Trust to implement service changes directly, whereas the courts could only achieve this indirectly during the course of proceedings. We are both able to directly recommend a financial remedy, although it is possible the courts could achieve a financial remedy which is in excess of the amounts we would typically recommend.

24. In our view, Mrs A appears to have a cause of action to take this case to court and that this may achieve the outcomes she is seeking. We have gone on to consider whether it was reasonable for Mrs A to explore a legal route.

25. We have discussed the potential need to explore an alternative legal route with Mrs A during a phone call. She did not raise any barriers to being able to pursue a complaint in the courts and she says she will actively try and pursue this. We have not seen any evidence to suggest there would be barriers to exploring legal action.

26. Considering the information above we feel it is reasonable for Mrs A to explore a legal remedy to try and resolve her complaint. Whilst we appreciate, she came to us first, the law is clear that we cannot investigate if there is a legal remedy available to the complainant and it is reasonable for them to use it.

27. Mrs A is aware if her circumstances change, legal action cannot be pursued, or it does not achieve all the outcomes she seeks, she can approach us again in a timely manner. We have provided her with information about our time limits.

28. In summary, and in line with the law, we have decided there is a potential alternative legal remedy available to Mrs A and it is reasonable for her to pursue this. As such we will not be taking any further action on her complaint.

29. We thank Mrs A for bringing her complaint to us.

1. We have carefully considered Mrs A’s complaint about University Hospitals Birmingham NHS Foundation Trust (the Trust). We consider Mrs A could take legal action on the matter that she has brought to us by way of a clinical negligence claim. Because of this, we have decided not to consider this complaint further.

2. We understand how important Mrs A’s complaint is to her and recognise what a difficult time this has been.