An independent provider in the City of Derby area

3. Mrs A complains about the care and treatment provided by the Provider. She specifically complains: • the Provider did not carry out laparoscopic (keyhole) surgery for her hysterectomy in August 2023 • the consultant gynaecologist gave a different reason why they could not carry out laparoscopic surgery in the post review meeting to the one given following surgery • the Provider did not give her enough pain relief as she woke up from her hysterectomy procedure • it delayed in arranging her post operative review appointment • the post operative review appointment was carried out by a doctor who she had never met and could not answer any of her questions • that during the complaint process, she did not receive any correspondence or recognition from the anaesthetist who did not manage her pain.

4. As a result of having open surgery, she says she has had a longer recovery time, ongoing pain and discomfort with and around the wound scar and higher up the stomach area. She explains she has flashbacks of waking up in pain following the operation.

5. Mrs A says the Provider’s actions have increased her anxiety.

6. As an outcome, Mrs A would like an independent investigation by us into her complaint and a financial remedy.

9. The HSC Act 1993, (Section 4, 1993 Act) says we cannot investigate a complaint if there is or was a legal remedy the aggrieved could pursue or could have pursued, unless it is (or was) not reasonable for them to do so. Simply put, if someone has (or had) a legal route available to achieve the outcome they are looking for, and if it is (or was) reasonable for them to pursue that route, we are not able to consider those matters further. This includes complaints where someone has a potential claim of clinical negligence.

10. Mrs A says the Provider’s actions caused her ongoing pain and discomfort, changed her body shape, and caused her mental health to deteriorate.

11. We consider Mrs A has a potential legal cause of action on her complaint – clinical negligence – as she believes the actions of the Provider caused harm to her physical and mental health.

12. As an outcome, Mrs A would like an independent investigation by us into her complaint and a financial remedy.

13. The courts are primarily set up to provide financial remedies. However, they can make recommendations to organisations that they undertake other actions, as well as providing a financial remedy (Section 4, HSC 1993 Act). Therefore, we cannot assume that a complainant will not achieve other remedies through legal action.

14. Mrs A is seeking financial redress for the detrimental effects on her physical and mental health. She said in terms of financial remedy she would like level six on our severity of injustice scale (our scale) – this is £12,500 plus.

15. We consider the potential amount sought is substantial. It is unlikely that pursuing legal action would cost more or take up a disproportionate amount of any remedy if Mrs A was successful. A successful negligence claim could also potentially award her for any future necessary treatment.

16. It is not our role to advise whether someone has a claim or the merits of a potential claim. When a person seeks substantial financial remedy (as in this case) we should advise they seek legal advice as to whether they may have a legal route open to them.

17. There are a few reasons for this:

• Strict time limits apply to legal claims, so it is not advisable for someone to follow the complaints route first without seeking advice if they think they have a claim or seek a large sum.

• If we were to find failings, we may not recommend a financial remedy at the level sought. A legal route may reach a higher figure.

• Our recommendations are not enforceable in the way compensation is via a legal route. Therefore, if there are failings the complainant will be more likely to obtain the remedy via a legal route.

18. Mrs A says she has not taken the legal route but is ‘happy for legal advice to go ahead if needed.’

19. We are of the view Mrs A could explore solicitors/legal services for their advice, to see if they would pursue her claim. She can approach ‘no win – no fee’ solicitors and/or contact legal advice services who may be able to assist, if she wishes to pursue legal action.

20. Although we consider some of the complaints raised by Mrs A do not have an alternative legal remedy (for example, contrary information and complaint handling), it is so closely linked to Mrs A’s overall complaint and would not be the cause of the main injustice she is claiming, that it would not be proportionate for us to look at on its own.

21. If Mrs A can find a law firm to take her claim on but has issues that fall outside of a claim, we may decide to look at those whilst legal action is ongoing. She should discuss this with us if this is the case.

22. However, it is important she bears in mind our legal time limit when doing so and comes back to us as soon as she is able. We can only consider complaints made to us within 12 months of the date Mrs A became aware of the issue. We can consider complaints outside of this time frame but to do so, we have to be satisfied there are good reasons for the delay.

23. We are sorry to learn of Mrs A’s complaint about the Provider and the difficulties and distress she continues to experience. We hope we have explained the thorough consideration we have given to our decision and clearly outlined the reasons for it.

1. We have carefully considered Mrs A’s complaint about an independent provider in the Derby area (the Provider). Having done so, we cannot consider her complaint further. This is because Mrs A could take legal action on the clinical matters she has brought to us and it would be reasonable for her to do so to try to achieve the outcome she is looking for.

2. We understand this was, and continues to be, an upsetting event for Mrs A. Our decision is not made without recognition of the distressing circumstances around the events. We will explain the reasons for our decision and the factors we have considered.