An NHS trust faces possible legal action following its partial rejection of a damning report into the care of a woman who died after an operation at Glenfield Hospital in Leicester.
Beryl Walters, 68, died in July 1998, 28 days after her windpipe was accidentally cut during an operation to her throat for the removal of a small tumour; she had been expected to make a full recovery.
Her surgeon, Mr Andrew Hall, was criticised after a detailed investigation by the Health Ombudsman into his procedures.
Following her death, Mrs Walter's daughter, Susan George, complained about the surgeon to the University Hospitals of Leicester NHS Trust which later rejected parts of the Ombudsman's findings, particularly that the outcome could have been different.
Lawyers have advised Mrs George that an ombudsman's findings can only be disputed through the courts and that the trust should not have rejected parts of the report.
Her action against the trust follows a decision by the General Medical Council (GMC) to dismiss a disciplinary hearing against the surgeon on a "procedural technicality", leaving her with little hope of further inquiries.
Lawyers have asked the trust to refer Mr Hall to the National Patient Safety Agency (NPSA) for assessment.
John Halford, partner at the law firm Bindmans, which is acting pro bono for Mrs George, said: "This sad case shows that, some four and a half years after the Shipman Inquiry was decommissioned, the GMC remains a body that does not command patient confidence even when grappling with serious questions about doctors' performance that are raised by respected, independent bodies like the NHS Ombudsman.
"Worse still, in this case the NHS Trust, which the ombudsman is specifically empowered to investigate, itself rejected key findings on a highly questionable basis. We are waiting to see whether the trust will belatedly take steps to assuage Mrs George's concerns including involving the NPSA. In short, we have a system where the response to the most serious of patient concerns can very easily become a macabre game of pass the parcel."
The GMC referred Mr Hall for a fitness-to-practice hearing in 2004 after the Health Ombudsman criticised him for using inappropriate surgical techniques, failing to get proper informed consent, and failing to seek specialist advice when Mrs Walters developed complications – from which, ultimately, she died. The case was dismissed in October 2008, days before the hearing was scheduled to start.
Peter Walsh, head of Action Against Medical Accidents, said: "Here we have a situation where it is the GMC's own arcane rules which have prevented them from focusing on their main role of protecting the public."
Dr Peter Wilmshurst, a cardiologist at the Royal Shrewsbury Hospital who has written extensively about the GMC, said: "The GMC has a difficult job dealing with so many complaints, which it is not doing very well. It... is run by amateurs rather than legal experts. It needs a complete overhaul so that disciplinary matters are considered by a completely independent body."
The GMC denied any wrongdoing and said the case was "concluded on the grounds of lack of jurisdiction".
A spokesperson at the University Hospitals of Leicester NHS Trust said: "We continue to be confident in Mr Andrew Hall's performance and clinical competence. The case has also been seen by the Health Ombudsman and the GMC and neither found that further action against Mr Hall was necessary. We are sorry that despite all of this Mrs George doesn't feel any closure."