8. Section 4 of Health Service Commissioner Act 1993 says we cannot investigate a complaint if there is or was a legal remedy that the person affected could pursue or could have pursued unless it is (or was) not reasonable for them to do so. In this case, Miss A is complaining of the failure of the Trusts in identifying and taking appropriate action in respect of her father, Mr A’s, head injury which led to his avoidable death from a subdural haematoma. Miss A is looking only for a financial remedy, of a minimum of £6000 which falls at the midpoint of level five of our guidelines. Accordingly, we are persuaded she may have a clinical negligence legal action open to her.
9. We therefore consider whether it is not reasonable for Miss A to pursue a legal remedy. We considered what Miss A is looking to achieve in approaching us. She has explained she is looking only for a financial remedy, and we are persuaded a legal case could achieve this for her.
10. Miss A intimated she is willing to seek legal advice in this respect. When asked what financial remedy would resolve this for her, she said she is looking to achieve the recovery of the cost of a private autopsy, as the minimum. She explained she needed to arrange a private autopsy as she had been unable to get a suitable answer from either Trust about her father’s head injury. This is something that could be achieved through successful legal action.
11. We also looked at what we may achieve if we considered the complaint. We can consider direct costs but would need to be able to link the need for the expenses to what went wrong. Alternatively, we can consider financial remedy for things like emotional impact and would do this in line with our published scale of injustice (SOI). Miss A is seeking remuneration that would appear to sit at a level five (£3750 – 12450) based on the impact on herself and the family she has described to us. Level five cases typically involve a marked and damaging effect on an ability to live a relatively normal life, with a significant amount of time to recover. In this case, Miss A has experienced the potentially avoidable loss of her father, which has led to mental health issues and in this case a financial outlay. If we can link the failing to the impact suggested in the scope of this complaint, we may be able to achieve a level of financial remedy she is looking for. We also acknowledge Miss A is suggesting her father’s death was potentially avoidable which would fall within level six of our guidelines.
12. Whilst financial remedy may be something we can recommend we note that we may not be able to link all the impact she has described to us, and any amount may be lower than she is seeking. We did discuss with Miss A that the levels of financial remedy we recommend, based on the impact on her and the potential outcomes discussed above. When discussing this, she intimated she would seek legal advice as she believes the failings here were exceptional and any financial outcome should reflect that.
13. We then turned to discuss any barriers Miss A may have in exploring her legal options and seeking negligence action through the courts. We asked Miss A if she was able to pursue privately funded legal representation. She stated this was something she would need to consider following advice. I discussed legal representation on a ‘no win no fee’ basis, and she said this was something she was open to explore. We discussed this at length and Miss A, who confirmed on two occasions during discussion that legal action is a prospect they were open to and that there were no obstacles for to explore this.
14. The impact Miss A says she has experienced because of these events is not lost on us and we are very sympathetic in terms of the sadness and grief she and her family have experienced and continue to experience. In reflecting on the outcomes Miss A is looking to achieve here, we are persuaded all her complaint could be remedied through legal action. Furthermore, in line with our legislation where it is an option for someone to take or have taken legal action, we expect or would have expected them to do so, unless it is unreasonable. We have seen no basis to suggest it is unreasonable. As it seems reasonable to explore legal action further, we consider that the most appropriate action and for Miss A to seek independent legal advice and explore her legal options in the first instance.