3. Mrs A complains The Hillingdon Hospitals NHS Foundation Trust (the Trust) delayed in providing hip replacement surgery and unnecessarily carried out a procedure, between November 2023 and August 2024.
4. Mrs A says the Trusts failings caused her severe pain and deterioration in her mobility to the extent she had become house bound. She also says the failing caused her deterioration in her mental health.
5. Mrs A is seeking service improvements and financial remedy.
8. We have carefully considered the available information. 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 Ms A to understand the circumstances and the outcomes they want. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
9. Mrs A says a failing in the duty of care by the Trust in delaying in providing a hip replacement surgery and carrying out an unnecessary procedure left her in severe pain for a longer period than necessary, impacted her mobility and also impacted her mental health. As a result of these failings, Mrs A is seeking financial remedy, so it appears a clinical negligence case is open to her. Negligence, in law, is an act or failure to act (omission), that doesn't meet the level of appropriate care expected, which results in injury or loss. If a doctor or health professional is negligent when giving you medical treatment, this is called 'clinical negligence'.
10. As a legal avenue appears to be open to her we then need to consider whether it is reasonable for her to pursue the matter in that way. In doing this we have considered the outcomes, including the amount of financial remedy Mrs A wants, and whether we are likely to recommend it in relation to the impact she has described to us. We discussed the figure she is hoping to achieve, by sharing our Severity of Injustice scale with her. She confirmed she is seeking £20,000 as compensation for the impact she believes the Trust has caused her.
11. If we were to consider the complaint and was to find a failing, we would likely place her case at Level four (£1,250-£3,700) of our severity of injustice scale based on what Mrs A has described the impact as to us. Our SOI states a case at level four will involve the person affected experiencing a significant and/or lasting impact, so much so that to some extent it has affected their ability to live a relatively normal life. Mrs A has explained the Trust’s failing has her mobility, which led her to be house bound and caused her to live in severe pain on a daily basis. She has also described the impact on her mental health. However, we also need to establish a failing caused the impact, and therefore our financial remedy may be lower than this depending on what we can link. We note she is also looking for service improvements that is achievable through our process. She is aware and understands what we can achieve during our process. However, we do appreciate it seems unlikely what we can achieve financially will be satisfactory for her.
12. We also considered whether legal action would address what Mrs A is trying to achieve. Legal action could allow for a financial remedy, furthermore, it is more likely to lead to a higher award, if successful. Whilst service improvements would not be directly achievable through that process it is a likely side effect of successful legal action. As such, a legal action seems to be more likely to achieve what Mrs A is looking for
13. Lastly, we discussed whether there are any barriers in taking legal action. We discussed with Ms A whether they spoken with a legal representative. Ms A confirmed she has not, however she explained she would be worried by the costs this process would entail. We explained the process of pursuing legal action is similar to ours and to complete the process of exploring no win no fee solicitors first, which she understood and accepted. Ms A did not advise of any other barriers in them exploring the legal avenue.
14. Considering the available information, the availability of a legal remedy, the level of financial remedy that she is looking for, we consider that a legal remedy should be explored in this case.
15. We appreciate that this had not been an easy time for Mrs A as she had experienced ongoing pain and distress. We hope that our decision explains why it is better to explore taking legal action as the best way to achieve the outcomes she wants. If, however, unsuccessful she can return to us, and we can consider the complaint further.
1. We have carefully considered Mrs A’s complaint about The Hillingdon Hospitals NHS Foundation Trust (the Trust). We are sorry to hear about the pain and distress she has described to us.
2. Having reviewed the available evidence, we consider Mrs A could take legal action on the matter she has bought to us, and we consider it reasonable for her to do so.