9. 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 discussed this with Mr G to understand what he is complaining about, what the claimed impact on him was and what his desired outcomes are. We do not consider whether legal action would succeed but whether it would be a reasonable option to look into.
10. In general terms, clinical negligence takes place when a patient who underwent a treatment becomes injured as a result of that treatment. Failure to carry out appropriate treatment could also amount to negligence.
11. Mr G clearly referenced ‘negligence’ when speaking to us about the operation he had at the Trust and feels the care he received was ‘negligent’. He says the Trust performed an operation wrongly, caused a bacterial infection and discharged him without any follow up care or advice. He says the Hospital breached its duty of care owed towards him.
12. He says this caused him avoidable suffering resulted in him becoming deaf. Mr G told us he wants compensation of at least £12,750. He told us he wants this for the impact the ‘negligent’ care had on him and that it caused him to lose his hearing in his left ear.
13. Mr G has a legal option available to him to achieve that compensation via a claim for clinical negligence. Based on what Mr G is complaining about he is making a possible claim of failure to carry out appropriate treatment which could amount to negligence. He would however need to take legal advice about this matter to establish this and if he could pursue this through the courts.
14. Mr G is also looking for an apology and service improvements. Although there is not a specific legal cause of action available to obtain an apology or service improvements, he might achieve this as a byproduct if he were to bring a successful claim.
15. We asked Mr G if there were any reasons he could not pursue legal action. He did give us any reasons as to why he could not explore legal action.
16. Parts of Mr G’s complaint we do not think would be suitable for legal action, such as the pain relief, infection and consent process. However, it would be difficult to consider these parts in isolation without first considering if the surgery was done correctly, which we think Mr G needs to explore legal action for. We have therefore decided not to consider these parts of his complaint at this stage.
Conclusion
17. There is an alternative legal remedy available to Mr G. Having taken all the circumstances into account, we consider it is reasonable for him to explore the possibility of taking legal action to address his complaint to achieve the outcomes he wants. If, after exploring or taking legal action, Mr G is unable to achieve the outcomes he wants, he can ask us to consider his complaint again. If he does that at a later point he should return to us without delay.
18. We understand this might not be the decision Mr G was hoping for and we are sorry for any further distress this may cause. We hope we have clearly explained why we have decided not to consider Mr G’s complaint any further.