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 have discussed this with Mrs N 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.
10. Mrs N is seeking financial compensation for what happened. She believes her husband suffered serious harm and died, because of significant failings in his care and treatment. If she is right about that, she would have a cause of action for negligence.
11. In general terms, clinical negligence takes place when a person suffers harm because of mistakes in their care and treatment. Failure to diagnose and/or carry out the appropriate treatment can amount to negligence.
12. Clinical negligence can only by established in the courts. Financial compensation for clinical negligence can only be awarded in the courts. We also note Mrs N seeks financial redress for lost earnings as Mr N was the financial provider in their household. This is something only a court can consider.
13. Mrs N also told us about the trauma and depression she experienced as a result of the loss of her husband. We understand this is an impact the courts can also look at through a clinical negligence claim.
14. Mrs N also told us she is looking for service improvements. Taking legal advice would not prevent her from achieving this. This is because she could get service improvements as a byproduct of a legal case. Additionally, as long as she comes back to us promptly after seeking legal advice or pursuing a claim, we can still consider this aspect of her complaint if it remains outstanding.
15. During our conversation Mrs N told us she is seeking level six on our scale of injustice. We spoke about the amounts on our scale of injustice. Our recommendations are often less than the amounts awarded by the courts.
16. A solicitor will be able to advise her whether she has a case and a court will be able to carefully consider and assess whether her husband’s care was negligent, what the impact of that was on him and her, and determine accountability, including awarding an appropriate amount of compensation if applicable.
17. During our conversation Mrs N did not share any barriers that would prevent her from taking legal advice. We consider it is reasonable for Mrs N to explore the option of taking legal action in respect of her complaint. This is because of the serious nature of her concerns, what she believes the significant impact of them was on her husband, and the financial compensation she is seeking.
18. For the above reasons, we have decided to close the complaint at this stage in our process. This will allow her the chance to explore the legal avenue fully.
19. We thank Mrs N for taking the time to explain what happened to her husband, we do not underestimate how difficult this has been. Additionally, she is welcome to come back to us should she find she is unable to pursue a legal claim, and we will consider her complaint again.
20. If she does come back to us, we would usually expect her to have approached three solicitors seeking advice and share with us evidence they would not take on the complaint. She should also bear in mind our legal time limit and come back to us promptly. We hope we have explained our decision clearly.