3. Mrs B complains about aspects of care and treatment her husband, Mr B, received from Mid Yorkshire Teaching NHS Trust (the Trust) between July and October 2023.
4. Mrs B is concerned the failings caused Mr B to be too unwell to continue with cancer treatment, which led to his death. This also caused Mr B unnecessary distress and pain.
5. By bringing this complaint to us Mrs B seeks compensation.
8. 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.
9. We have discussed this with Mrs B to understand her circumstances and the outcomes she seeks. We do not consider if legal action would succeed but if it would be a reasonable option to look in to.
10. In general terms, clinical negligence takes place when a person suffers harm because of mistakes in their care and treatment. Failure to carry out appropriate treatment can also amount to negligence. Clinical negligence can only by established by the courts.
11. Mrs B believes Mr B suffered harm because of failings in his care and treatment. If she is correct and there was a significant failing in his care which caused Mr B harm, she would have legal action for clinical negligence available to her.
12. We understand Mrs B feels strongly the Trust’s care and treatment caused Mr B to deteriorate and led to his death. We understand this has impacted Mrs B and family financially. Mrs B seeks compensation as an outcome to the complaint.
13. Where people have the option to pursue legal action the law says we should expect them to do that first, rather than looking at the complaint ourselves.
14. A court will be able to carefully consider and assess if Mr B’s care was negligent and whether this caused his deterioration and death. It may also be able to determine accountability, including awarding an appropriate amount of compensation if applicable.
15. Where appropriate, a court can sometimes look at whether compensation is necessary for the ongoing or future impact on someone. We generally cannot do this in the same way as the courts.
16. In Mrs B’s complaint form to us and in initial conversation, she said she is seeking compensation for future loss of earnings, including Mr B’s salary. Mrs B estimated this at around £276,000. Mrs B also seeks compensation for the pain, suffering and shortened lifespan Mr B experienced.
17. While we can achieve compensation, we explained to Mrs B we cannot consider future loss of earnings, and this is something the courts may be able to consider. Mrs B asked us a hypothetical question of what would happen if she said she did not want us to consider future loss of earnings.
18. From the information Mrs B provided in her complaint form and in discussion with us, we think it is clear Mrs B is seeking compensation for future loss of earnings. Based on this, we consider Mrs B is likely seeking a significant amount of compensation as an outcome to the complaint, part of which only the legal route could consider.
19. Mrs B may be able to achieve more compensation through the legal route than we might be able to recommend if we were to uphold the complaint. We do not want to injustice Mrs B from achieving more compensation and want to ensure she has the best opportunity to do so.
20. There are several independent and charitable organisations who can assist people who wish to make legal claims against the NHS, and we have shared details of those with Mrs B.
21. Mrs B raised concern about the cost of legal action and her financial situation, as she is currently having to use all her income to pay for her bills, following the loss of Mr B and his income. Mrs B said her income has also been affected as she has been unwell and unable to work.
22. We discussed the option of ‘no win, no fee’ solicitors, where clients only pay legal fees if their claim is successful. Mrs B said she had considered this, but did not want a solicitor taking over 60% of compensation for the fees. We recognise Mrs B wants to ensure she has the best possible opportunity to seek compensation for her family’s future.
23. We do not consider the solicitor fees would make it unreasonable for Mrs B to pursue an ALR, given the significant amount she is seeking and that we do not consider future loss of earnings. Other solicitor firms may charge different fees.
24. Mrs B also raised concern about finding this process extremely stressful and emotional. She also said she has recently been diagnosed with a chronic illness, requiring reconstructive surgery with likely further procedures needed in future. Mrs B said the thought of having to start this process again with a lawyer is exhausting, distressing and could exacerbate her condition.
25. We recognise pursuing a legal claim about upsetting and distressing events may be difficult for Mrs B, given her health condition also.
26. This does not make it unreasonable for her to pursue a legal claim. A solicitor would be on Mrs B’s side and be able to offer legal advice and assistance targeted to her specific circumstances and assist with any stress she felt. This may be a less stressful approach than dealing with us, as we must remain impartial.
27. Mrs B did not tell us about any other barriers to her seeking legal advice.
28. In summary, we understand the impact Mrs B claims is significant. Mrs B is likely seeking a significant amount of compensation, part of which includes future loss of earnings which we are unable to consider.
29. Having explored reasonableness, we understand Mrs B is within the three year time limit to pursue a legal claim. We do not consider there are any barriers to her pursuing this and we understand she has spoken with one solicitor previously. On this basis, we conclude it is reasonable for Mrs B to pursue this avenue first. We believe this is the best option for Mrs B, given the severity of her complaint and the outcomes she seeks.
30. If after fully exploring legal action, Mrs B is not able to pursue it or does not achieve all the outcomes she is seeking, she can bring the complaint back to us and we will consider it again. At that point, we would need to carefully consider the outcome of any legal enquiries and the time she has taken to complain to us. This is because we have a time limit of one year.
1. We have carefully considered Mrs B’s complaint about Mid Yorkshire Teaching NHS Trust (the Trust). We were sorry to hear of the concerns Mrs B bought to us and for the loss of Mr B. We recognise the profound impact this has had on Mr B’s family. We do not wish to underestimate how difficult this has been for Mrs B and family.
2. We have decided to take no further action on Mrs B’s complaint, for the time being at least. This is because we consider it reasonable for her to pursue legal action on the matter she brought to us.