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 have discussed this with Miss I 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.
12. Miss I is alleging clinical negligence when the Trust failed to operate on her wrist and hip/pelvis during her admission in April 2023. Miss I also alleges the Trust gave her too much of an unknown medication.
13. As Miss I is alleging clinical negligence that caused harm, we consider there is a possible cause of action in the form of a clinical negligence claim.
14. Miss I told us she now has a wrist injury that causes her discomfort and prevents or impacts everyday tasks such as washing herself, driving, and preparing food and drinks, such as using a kettle. Miss I also says her wrist is disfigured. She feels the Trust could have avoided or mitigated this had she had surgery sooner.
15. Miss I says she has two to three untreated fractures in her hip/pelvis. Miss I says she is now in pain and is concerned she has made these fractures worse using her hip without realising it was broken. She considers she may need future hip surgery.
16. Miss I had a bad reaction following the use of an unknown medication. She considers she was given too much for her weight. Miss I says this impacted her heart. She says she now has a heart condition which she speculates may have been caused or made worse by the possible misuse of this medication. Miss I says the Trust has not disclosed what drug was used, and therefore she is now anxious to have future treatment in case the same drug is used.
17. Miss I told us to remedy this complaint she wants a financial remedy. Miss I has no other desired outcomes.
18. We asked Miss I if she had a financial remedy in mind. Miss I told us she may need to move property as a result of the impact. She said she would need over £20,000 to do so, considering all the costs. She also said she would need funding for future care costs.
19. The courts can make financial awards, and are best placed to do so. While we can make financial recommendations, these are often lower than what a person can achieve through the courts, and we do not make financial remedies for future costs. The courts on the other hand can and do make financial awards for future costs, including care costs and costs for home adaptation if appropriate. Therefore, as the amount of financial remedy desired is in the tens of thousands, and for future costs, the courts are best placed to achieve this remedy for Miss I.
20. As Miss I is alleging clinical negligence that caused her harm and wants a significant financial remedy, we consider there is an alternative legal remedy available to her in the form of a clinical negligence claim.
21. We considered if it was reasonable for Miss I to pursue this alternative legal remedy.
22. Initially Miss I did want to pursue an alternative legal remedy and felt she could not pursue this. Miss I later told us she considers this to be a serious issue and considers the Trust was negligent. She therefore told us she now intends to pursue an alternative legal remedy and feels she can do so.
23. Miss I told us she could not fund a claim herself. She may have the option to fund any claim under a ‘no win no fee’ agreement.
24. We have seen no evidence to suggest an alternative legal remedy would be unreasonable to pursue in the circumstances.
25. Considering all the above, we consider Miss I has an alternative legal remedy available to her, and this is reasonable to pursue. This means we cannot currently consider this case any further, as per the Health Service Commissioners Act 1993.
26. We are not saying we will never consider this complaint, only that Miss I should exhaust the legal route first before we can consider her complaint further. This may also result in the best outcome for Miss I, if she is successful with a clinical negligence claim, and gets the level of compensation she may be entitled to.
27. Complaints give us valuable insight into the organisations we investigate, and we recognise this has been an emotionally challenging process for Miss I. We would like to thank her for sharing her experience with us.