Guy's and St Thomas' NHS Foundation Trust

4.Ms K complains that on 1 September 2022 Dr A reviewed Mrs K’s scan, and failed to identify new lesions on her spine which indicated her cancer had spread.

5.Ms K says Mrs K was deprived of appropriate treatment and care prior to her death on 23 November 2022. Ms K says she has had counselling because of the nightmares she has suffered watching her mother die in pain and she has not gone a day since Mrs K died without thinking about the way she was treated.

6.As an outcome to her complaint, Ms K would like financial remedy.

7.Mrs K was diagnosed with lung cancer in 2020. It was treated with ablation (a minimally invasive procedure that uses heat or extreme cold to destroy cancer cells in the lung). Her follow up protocol was six monthly surveillance scans.

8.A six-month scan was carried out on 23 August 2022. Dr A reviewed the scan images on 1 September 2022 and sent a letter to Mrs K’s GP on 2 September. They said Mrs K continued to have good post ablation changes, they had not identified any new lesions and would see her again in six months.

9.Mrs K was admitted to hospital on 15 October 2022 suffering from a urinary tract infection and possible chest infection. She was discharged on 26 October 2022. Mrs K was readmitted to the hospital on 29 October and diagnosed with possible sepsis and pneumonia. She was discharged on 16 November and readmitted on 17 November.

10.A CT scan was done after Mrs K was readmitted on 17 November, and it was found her cancer had spread to her spine. Mrs K sadly died shortly afterwards on 23 November.

11.On 12 April 2023 Ms K complained to the hospital about aspects of care and treatment provided to Mrs K during her two hospital admissions between 15 October and 23 November 2022.

12.The hospital scheduled a meeting with Ms K on 28 June 2023 to discuss her complaint and its findings. During the meeting Ms K was told the scan done on 23 August 2022 had been reviewed as part of the hospital’s investigation and it showed lesions on Mrs K’s spine that had not been reported by Dr A when they reviewed the scan on 1 September 2022.

13.The hospital contacted Dr A with its findings. Dr A wrote a Duty of Candour letter (every health and care professional must be open and honest with patients and people in their care when something that goes wrong with their treatment or care causes, or has the potential to cause, harm or distress) to Mrs K’s family on 4 July 2023 and said there were some findings they failed to report on the scan completed on 23 August 2022 including new lesions in the spine. They said there were no acceptable mitigating circumstances for this misreport. Dr A said they would be changing their clinic practice and now aimed to have a fellow clinician reporting the follow up scans so they could review the images and their report. Dr A said they would therefore act more as a reviewer.

14.Ms K complained to the Trust about Dr A on 23 April 2024.

15.The Trust replied on 16 August 2024 and apologised for Dr A’s error and gave Ms K details about how to complain to our office.

16.Ms K contacted us on 20 August 2024.

19.The ‘Health Service Commissioners Act 1993’ 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 Ms K to understand the circumstances of her complaint, and the outcomes she wants. She has told us Dr A’s failures meant Mrs K was denied treatment that would have made her final days more comfortable. She has told us that witnessing Mrs K’s final days in pain has affected her significantly. She says she has received counselling to try and cope. She would like a financial remedy in recognition of the impact of Dr A’s mistakes. We have asked Ms K what amount of financial remedy she wants. We have given her a link to our Financial Remedy guide to help her with this decision. She has not told us what remedy she thinks is suitable in the circumstances of her complaint.

20.We are satisfied there are potential legal routes available for Ms K to pursue her concerns through. Specifically, based on what Ms K has told us, we consider there is a cause of action available in clinical negligence for the issues she has raised. This is particularly because, as set out in the ‘background’ section, Dr A and the Trust have confirmed errors were made. In saying that, we have made no assessment of the likelihood of success of these potential routes. We have simply looked at whether there are any routes, and whether it is reasonable to explore them.

21.Generally, the main outcome for a legal claim in court is financial redress. This is the only outcome Ms K is seeking. While we can make recommendations for financial remedy where we see something has gone wrong, the amounts we recommend are usually more modest than those of the courts because our approach is different to that of the courts. When we consider recommending a financial remedy, it is in relation to the impact on the complainant, whereas the legal process is more punitive and therefore, the sums are often higher.

22.Ms K told us she has contacted legal firms to pursue legal action, and they said her case was not suitable. We asked Ms K to provide us with evidence of this. She sent us copies of emails from two law firms she approached in June 2023 to discuss making a claim for clinical negligence. The first says the firm does not deal with medical negligence matters. The second firm said it would not take action because they did not believe there were reasonable prospects of success.

23.However, Ms K approached both law firms before she had received confirmation from Dr A and the Trust that mistakes were made, and she has not spoken to any law firms since. This means it is possible that a law firm would view her chances of success in a prospective claim differently if she was to explore this option again, with her Duty of Candour letter as evidence.

24.We asked Ms K whether there were any reasons why it would be unreasonable to expect her to explore her options again. She told us she cannot afford to pay for legal action. While we recognise the cost of legal action can be prohibitive, there are other finance options available when exploring a clinical negligence claim. Some law firms will provide free initial advice on prospective claims, and others offer ‘no-win-no-fee’ services which means she would not incur upfront costs.

25.Taking all of the above into account, legal action appears to be a reasonable option for Ms K to explore. This could achieve the financial remedy she is seeking.

26.If Ms K is unable to pursue legal action, has issues that are not considered and remedied by the courts, or the court does not look at all the outcome she wants, she can ask us to consider her complaint again. If that happens, we will need to consider our time limit in line with the ‘Health Service Commissioners Act 1993’, so it is important she returns to us promptly. We will also check how far she got with the legal process to understand why she has returned to us.

27. We are very sorry to hear about what happened to Mrs K and how this has affected, and continues to affect, Ms K. We thank her for bringing her concerns to us. We hope this statement clearly explains why we will not be considering her concerns further at this time.

1.We have carefully considered Ms K’s complaint about Guy’s and St Thomas’ NHS Foundation Trust (the Trust) and, specifically, the actions of Dr A. We were saddened to hear about the sad death of Ms K’s mother, Mrs K, and the events Ms K complains about. We are also sorry to hear about how they have impacted on her life.

2.We believe there may be a legal remedy available to Ms K in relation to her complaint about Dr A. Having discussed this with Ms K, we have seen nothing to suggest it would not be reasonable for her to explore this. We have therefore decided not to consider her complaint at this time.

3.We explain the reasons for our decision below.