The Royal Marsden NHS Foundation Trust

3. Mr E complains about the following aspects of the care the Trust gave him before, during and after his operation on 1 October 2020:

• it advised him it was 90% certain he had pancreatic cancer and did not tell him the biopsies he had around April/May 2020 were inconclusive. He complains the Trust told him the biopsy results in December 2020 after his operation and should have told him sooner before his operation • it did not give him the option to adopt the ‘wait and watch’ policy in October 2020 and give him the choice to not have the operation • it did something wrong in the operation and it did not stitch him up properly • it did not give good aftercare after his operation.

4. Mr E says he lost the opportunity to make an informed decision about whether he wanted the surgery in October 2020. He says from April until December 2020 he worried he had cancer, which greatly affected his mental health. He explains he lost his spleen and 30% of his pancreas and he suffered internal bleeding. There was gaping in his wound and it did not heal well. He had to attend multiple GP appointments for his stitching and had to keep the staples in longer than he should have. He says his GP diagnosed a major abdominal hernia, which cannot be operated on as he would likely get an infection as he has no spleen.

5. He says he had to take six months off work and cannot drive as he cannot use a seatbelt. He has had to move to indoor duties at work. He says he put on four stone and had to buy new clothes. He says the weight gain and scarring has made him embarrassed about his body.

6. Mr E wants the Trust to pay him compensation. He also wants the Trust to make service improvements as he does not want someone else to go through what he did.

7. Mr E was referred to the Trust for further investigation into a small pancreatic lesion and possible liver lesion on a CT/MRI scan, with a potential diagnosis of neuroendocrine tumour (a cancer that begins in specialised cells called neuroendocrine cells).

8. In April 2020 the Trust reviewed the imaging it received and decided it was consistent with a pancreatic tail neuroendocrine tumour. It recommended further investigations (an endoscopic ultrasound and biopsy) to confirm the diagnosis.

9. Mr E had two biopsies. He says the first was around April/May 2020 and the second shortly after that. Both biopsies were inconclusive.

10. In August 2020 Mr E saw a surgeon at the Trust who reviewed the imaging. The Trust considered this showed there was an isolated mass in the tail of the pancreas. The surgeon suggested a laparoscopic open distal pancreatectomy (a surgical procedure to remove benign or malignant tumours in the body or tail of the pancreas) while saving the spleen.

11. On 1 October 2020 Mr E had the surgery. During surgery, the surgical team changed the type of procedure due to bleeding. The Trust says the blood loss led to it needing to remove his full spleen. The Trust also removed part of Mr E’s pancreas during the surgery.

12. On 10 October 2020 the Trust discharged Mr E.

13. In December 2020 the Trust explained to Mr E he did not have cancer and his diagnosis was splenunculus (small nodules of spleen that are detached from the rest of the organ). Mr E said this is the first time the Trust told him his previous biopsies were inconclusive.

16. 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 Mr E to understand his 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.

17. Mr E could pursue a clinical negligence claim as he is claiming a large impact, physical harm and adverse effects to his quality of life, which he says is caused by the Trust’s decision to operate on him and the surgery itself.

18. He wants compensation and service improvements. He wants a large amount of compensation to remedy his considerable impact, and this is an important outcome for him. Compensation could be achievable through a legal claim. Service improvements are not guaranteed through the legal route but these can be achieved as a by-product of a legal claim.

19. Mr E sought legal advice around January 2021 and spoke to two solicitors’ firms. He told us neither would take his case on. On this basis, we originally decided that it was not reasonable for Mr E to pursue legal action, as he had already made unsuccessful attempts to do this.

20. We sought clinical advice from a consultant hepatobiliary surgeon as part of our primary investigation. The clinical advice showed us things may have gone wrong in terms of the Trust’s actions before the operation.

21. It is important to emphasise that we have not made any findings at this stage, but the clinical advice we received has made us reassess whether it is now reasonable for Mr E to take legal action. This is because we have new information, which Mr E was not aware of before, and did not have when he approached legal firms before.

22. We spoke with Mr E by telephone to discuss the clinical advice we had received. We also sent him a redacted copy. We explained we may not be giving him a good service if we denied him the opportunity to seek legal advice at this stage. Mr E understandably did not want to go through the legal process and go through the details of what happened to him with another organisation. He also had concerns he could not afford to pursue a claim. He told us that the main issue he wants compensating for is that his quality of life has been affected. The courts are best placed to calculate what compensation would be appropriate in the circumstances. We explained that we are not here to replace other forms of resolution like the courts, and we discussed that ‘no win, no fee’ firms could be an option.

23. We discussed the differences between our financial compensation scale and compensation in a legal claim. Mr E said before he would like to get ‘the more the merrier’ in terms of compensation. We asked him directly if he had any strong reasons as to why he could not pursue legal advice in the first instance. He confirmed that although he would prefer for us to investigate his complaint, he would seek legal advice due to the new information we have.

24. We discussed that he has three years from the date of the events, or when he became aware of the events, to pursue a legal claim, so he should seek legal advice as soon as possible. He confirmed he had taken legal advice from a solicitor since getting the clinical advice from us. We discussed that if no legal firms are willing to take his case on, he can return to us for us to reconsider his complaint. If this happens, it would be helpful for him to return to us with information in writing from the firms which confirmed they would not take his case on. If Mr E needs to return to us, he should do so quickly due to our 12-month time limit. The law says that a complainant must bring a complaint to us within 12 months of the event, or the date they became aware of the event. We can put our time limit to one side if we think it is reasonable to, but Mr E should approach us without delay.

25. For the reasons above, we will not be considering Mr E’s complaint further. We appreciate our decision is not what he had hoped for. We hope this statement clearly sets out our decision and why we consider it is now reasonable for him to take legal action.

1. We have carefully considered Mr E’s complaint about The Royal Marsden NHS Foundation Trust (the Trust). We are sorry to hear Mr E’s concerns about his operation and how during his operation he had to have his spleen and part of his pancreas removed. We are sorry to hear how he experienced a major abdominal hernia and that his quality of life has been negatively impacted by the surgery. We understand this has been a really difficult time for Mr E.

2. We have considered the information Mr E gave us and we have taken clinical advice from a consultant hepatobiliary surgeon. We have decided not to do a detailed investigation into Mr E’s complaint as we think he should take legal action on the matters he has brought to us.