A medical practice in the Cumbria area

3. Ms E complained the Practice did not make any referrals for further investigation when she first complained of hearing loss. Ms E said that by the time the Practice did make a referral, her hearing loss was permanent. The outcomes Ms E is seeking are compensation and for the Practice to improve its service.

Delay in referral

6. 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 discussed this with Ms E to understand her circumstances and the outcomes she wanted. We do not consider whether legal action would succeed but whether it would be a reasonable option to look into.

7. In general terms, clinical negligence takes place when a patient who underwent a treatment becomes injured as a result of that treatment. Failure to carry out appropriate treatment could also amount to the negligence.

8. This complaint is about delaying a diagnosis of a condition that has now led to potentially permanent damage. As Ms E is looking for compensation, there is a legal remedy available to Ms E via a claim of clinical negligence. To be clear, we are not making any judgement about whether Ms E is likely to succeed with a legal claim. We are saying that legal action is the most appropriate path for her to follow at this stage, given the nature of her concern and the outcome she is seeking.

9. In deciding whether it is reasonable for a person to pursue legal action, we consider the level of the amount sought, and whether we are likely to recommend it in relation to the injustice claimed.

10. Although Ms E remains unsure about how much exactly she would want, we discussed with her the amount that PHSO would likely to be able to achieve if we upheld her complaint. We used our severity of injustice scale as a tool in this conversation. Ms E said that the amounts that we could achieve did not feel like they would be enough to account for what has happened.

11. Ms E told us her main concern around seeking legal advice was the cost but said that she had not yet approached a no win no fee solicitor. Although we cannot know if a no win no fee solicitor would accept Ms E’s case, this needs to be explored before we can consider whether affordability is a barrier. Ms E has not told us about any other barriers (such as mental/physical health barriers) to her pursuing legal action.

12. Ms E was also looking to achieve service changes as an outcome as well as compensation. Although courts cannot order service changes, they can occur incidentally as a result of a legal claim.

13. Having taken all the circumstances into account, we consider it is reasonable for Ms E to explore the possibility of taking legal action to address her complaint and achieve the outcomes she wants. We have already signposted her to Action against Medical Accidents (AvMA), who offer advice on the legal processes involved in clinical negligence cases.

14. In summary, we have decided it is appropriate for Ms E to explore the possibility of taking legal action first, rather than us look into the complaint now. However, if Ms E ultimately decides not to take legal action, or she does not achieve everything she wants via legal action, she can ask us to consider her complaint again. At that point, we would need to carefully consider the outcome of any legal action, the time which had elapsed (as time limits apply to NHS complaints) and specifically what Ms E still hoped to achieve via our intervention.

1. We have carefully considered Ms E’s complaint about a medical practice in the Cumbria area (the Practice). Ms E complained about the delay in referring her to hospital when she was experiencing hearing loss.

2. We have decided Ms E could take legal action on the matter she has brought to us and will therefore be taking no further action.