A hospital in the Birmingham area

3. Mr W complains about the care and treatment provided to him from the Hospital on 17 October 2019. He says:

· staff misdiagnosed his hearing loss · staff mistreated his hearing loss

4. Mr W says as a result he has suffered unnecessary pain, anxiety, suffering, stress, and frustration, and this has led to him having to make life changing adjustments. He says he also suffers on a social level as he is unable to participate in his passion for golf and sailing as he is unable to hear the safety notifications. He says his balance has been affected and he has now become physically unstable.

5. Mr W says if the Hospital had correctly diagnosed and correctly treated his hearing loss, he may have had the opportunity to prolong the use of his hearing.

6. By bringing the complaint to us, Mr W is seeking an assessment into the conduct of staff, additional staff training, and financial compensation

7. On 17 October 2019, Mr W woke up with sudden unilateral hearing loss in his right ear. He was unable to get an immediate appointment with his own GP and attended the urgent care centre at the Hospital.

8. Mr W was treated by the Hospital for a presenting history of a blocked right ear with a feeling of pressure. He had suffered with a history of common cold symptoms with a sore throat two to three days prior to his attendance.

9. The clinician, after using an Otoscope, could not visualise the tympanic membrane due to ear wax in both ears and as a result, advised Mr W to administer olive oil into both his ears. The clinician impressed the importance of a follow-up with his GP, or to return to the hospital if there were further concerns, or persistence of symptoms.

10. Between October 2019 and September 2020, Mr W was seen on three further occasions within his own GP surgery, both by the practice nurse and twice by his own GP. It was only following consecutive consultations at the surgery that he was subsequently referred to an Ear, Nose and Throat (ENT) specialist.

11. The ENT specialist confirmed that Mr W suffered hearing loss in his right ear because of dead nerves within the ear. He was told it was unlikely that he would ever recover any hearing in his right ear.

12. Consequently, Mr W’s hearing loss is permanent and as a result he was referred to the audiology department who have since provided him with hearing aids.

14. The law that gives us our powers is called the Health Service Commissioners Act 1993. It states, 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 Dr W to understand Mr W’s circumstances and the outcomes he wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.

15. In the Hospital’s response, it acknowledged given Mr W's presentation, the clinician should have directly asked about hearing loss. They have used this case as a learning tool to consolidate the clinician’s own knowledge and to reflect on circumstances in the future where further investigations or referral would be required.

16. Mr W would like financial compensation. Based on the impact he told us about, and the outcome he seeks, we consider he could potentially pursue his complaint through a clinical negligence claim. We do not consider whether a legal claim would succeed, only whether it is a reasonable option to pursue to achieve the desired outcomes.

17. Mr W may be entitled to financial compensation for the pain, psychological harm, and life changing adjustments he has experienced as a result of the care and treatment given by the Hospital.

18. Mr W considers £50,000 as a figure he would be seeking in financial compensation.

19. Mr W is aware of our scale of injustice and feels the level of financial compensation he may be entitled to falls outside of what we may be able to successfully achieve. Considering this, it appears the amount of financial remedy Mr W would be potentially seeking is significant and would not outweigh the costs of seeking legal advice.

20. A legal process has more focus on achieving financial compensation than our service does, and a legal route is often able to achieve more significant amounts than we are.

21. Mr W did not tell us of any practical barriers, such as poor health, lack of funds, or fear of attending court which would make this process difficult for him. His complaint is also within the three-year time limit for making a legal claim.

22. Mr W told us he is thinking about asking a medical negligence solicitor to look into his complaint, and he is aware of the three year time limit for making a legal claim.

23. Mr W is naturally concerned about all of the delays which have already taken place, including those related to the COVID-19 pandemic.

24. Taking all this into account, we have decided not to consider this complaint further. This is because we consider it is reasonable for Mr W to see if legal action can resolve his complaint. In line with the law that governs us, we should not take further action in these circumstances.

25. If Mr W discovers the legal action does not resolve his complaint, he could bring his complaint back to us. If he were to bring the complaint back to us, we would keep in mind we cannot consider issues the courts have examined.

26. We would also need to consider our time limit which says we only consider complaints within 12 months of the person becoming aware of the issues raised, however, we can put this time limit aside if we feel it is reasonable to do so.

27. Mr W also told us he would like additional staff training and an assessment into the conduct of staff as an outcome to his complaint. We understand the legal process might consider the actions of staff, but it might not result in any disciplinary action. We would not recommend any such action. If Mr W has concerns about a clinician’s fitness to practice, the General Medical Council is the relevant regulator.

1. We have carefully considered Mr W’s complaint about a hospital in the Birmingham area (the Hospital). Mr W has suffered the irreversible loss of his hearing, and we are sorry to hear about his difficult experience.

2. We have decided not to look at Mr W’s complaint further. This is because we consider he could take legal action on the complaint he has brought to us. We consider it reasonable for him to pursue the outcome he is seeking by looking into taking legal action.