University Hospitals Birmingham NHS Foundation Trust

4. Ms R complains about aspects of the Trust’s care and treatment it gave to Mrs R between December 2022 and 7 January 2023. Specifically, she says it did not:

• give Mrs R an accurate risk for complications from surgery • take into account Mrs R’s current health conditions and medication when it decided to go ahead with planned surgery on 5 January • access Mrs R’s GP records or those from another where she had recently been treated before deciding to go ahead with the surgery • provide Mrs R with the correct care and treatment following the surgery on 5 January.

5. Ms R also complains the Trust did not inform the coroner on 9 January 2023 it had made an internal referral for a Serious Investigation Review (SIR).

6. Ms R says her mother died because of the Trust’s actions. She says Mrs R would not have decided to go ahead with the surgery if she had been given an accurate risk of complications. She says her mother’s death was completely unexpected and she and her family have been caused ongoing stress, trauma and grief as a result. Ms R says if the Trust had told the coroner it was conducting an investigation, the coroner would have done a postmortem which would have given the family clarification about the cause of Mrs Gregory’s death.

7. Ms R told us she wants explanations, service improvements and financial remedy.

8. The following is a short summary of events to put the complaint in context.

9. Mrs R was diagnosed with lung cancer in 2021. After initial treatment she remained under surveillance.

10. In November 2022 Mrs R had a scan which showed activity in the lower part of the lung which raised suspicion of malignancy. She had a meeting with the consultant thoracic surgeon on 22 November who said they could offer surgical wedge excision (a surgical procedure to remove a wedge-shaped piece of lung tissue). The consultant told Mrs Gregory there was a 2% to 3% chance of complications with the surgery. They recorded she said she was keen to go ahead.

11. Mrs R attended a phone pre-assessment clinic on 20 December. A nurse then called Mrs R on 22 December and told her she needed to stop taking methotrexate (prescribed for rheumatoid arthritis) a week before surgery. Mrs R told the nurse she had been to her GP because she felt unwell and had also gone to the Emergency Department at the Alexandra Hospital, Redditch (part of the Worcestershire Acute Hospitals NHS Trust) and had been prescribed a seven-day course of antibiotics for a chest infection.

12. Mrs R was admitted to hospital on 5 January 2023 for the planned surgery. It was noted Mrs R said she had finished the course of antibiotics eight days ago and her last dose of methotrexate was two weeks ago. The surgery was performed later that day.

13. Mrs R’s condition deteriorated on 6 January and she sadly died on 7 January.

14. On 9 January the Trust reported an incident on its internal incident reporting system because there had been an ‘unexpected deterioration of patient’.

15. A referral was made to the coroner on 9 January because the cause of death could not be ascertained. The coroner decided not to do a postmortem, and the death was registered on 25 January with the cause of death as aspiration pneumonia.

16. A SIR was completed, and a written report was sent to Mrs R’s family on 29 September.

19. 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.

20. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to. In this case, Ms R is complaining about the failure of the Trust to delay Mrs R’s surgery scheduled for 5 January. She also complains about the care and treatment Mrs R was given after the operation. Ms R says her mother’s death was avoidable. Ms R also complains the Trust failed to tell the coroner it was undertaking a SIR. She says this means no postmortem was done and the family has not been given clarity about the cause of Mrs R’s death.

21. We have discussed this with Ms R to understand her circumstances and the outcomes she wants. Ms R is looking for a financial remedy of a minimum of £10,000 which falls at the high end of level five of our published scale of injustice (SOI). Ms R told us financial remedy of £10,000 would pay for her brother and his wife to travel from Australia and stay in the UK to allow them to take part in a memorial for their mother. She says anything more than this amount would be distributed to Mrs R’s children and grandchild.

22. We looked at what we may achieve if we considered the complaint. We can consider financial remedy for things like emotional impact and would do this in line with our SOI. Ms R is seeking remuneration that would appear to sit at a level five (£3,750 to £12,450) 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, Ms R has experienced the potentially avoidable loss of her mother, which has led to trauma and grief. 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 Ms R is suggesting her mother’s death was potentially avoidable which would fall within level six of our guidelines (level six payments are £12,500+).

23. Generally, the main outcome for a legal claim in court is financial redress. While we can make recommendations for financial remedy where we see something has gone wrong, the amounts we recommend are usually more modest than those of the courts because our approach is different to that of the courts. When we consider recommending a financial remedy, it is in relation to the impact on the complainant, whereas the legal process is more punitive and therefore, the sums are often higher.

24. We are satisfied there are potential legal routes available for Ms R to pursue her concerns through. Specifically, based on what Ms R has told us, we consider there is a cause of action available in clinical negligence for the issues she has raised. In saying that, we have made no assessment of the likelihood of success of these potential routes. We have simply looked at whether there are any routes, and whether it is reasonable to explore them.

25. Because we have decided potential legal routes are available for Ms R, we must then go on to consider whether it is reasonable for Ms R to pursue a legal remedy.

26. We asked Ms R whether she had considered seeking legal advice in this matter. She said the family was not in a position to pursue legal action and nor was anyone in the emotional state to do so.

27. Although we recognise the cost of legal action can be prohibitive, there are other finance options available when exploring a clinical negligence claim. Some law firms will provide free initial advice on prospective claims, and others offer ‘no-win-no-fee’ services which means Ms R would not incur upfront costs.

28. We also take the view that pursuing a legal remedy though the courts will often involve having a dedicated solicitor/ legal professional who has a vested interest in winning the case. This might mean that a complainant would feel more supported through a legal route than through the complaints process with us, who is impartial and unable to take sides.

29. We are persuaded part of Ms R’s 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.

30. As it seems reasonable to explore legal action further, we suggest Ms R seeks independent legal advice and explore her legal options in the first instance.

31. In addition to financial compensation, Ms R also seeks explanations and service improvements. This is not something the courts are likely to directly achieve for her, although they may be implemented as a byproduct of any legal action. This means that, if Ms R pursues legal action for the financial remedy she seeks, she can return to us after legal action is complete for any outcomes that the courts could not achieve for her. It is also open to Ms R to return to us if she explores legal action and it becomes clear that it is no longer reasonable for her to pursue that route. If that happens, we will need to consider our time limit in line with the ‘Health Service Commissioners Act 1993’, so it is important she returns to us promptly.

32. We thank Ms R for bringing her complaint to us. The impact Ms R says she has experienced because of these events is not lost on us and we understand the sadness and grief she has told us she and her family have and continue to experience.

1. We have carefully considered Ms R’s complaint about University Hospitals Birmingham NHS Foundation Trust (the Trust).

2. We were very sorry to learn of Ms R’s experiences and for the very sad loss of her mother, Mrs R. At this time, taking into consideration the failings Ms R is suggesting and the outcomes she is looking to achieve, we consider she could take legal action on the majority of the matters brought to us.

3. We explain our reasons for this decision below.