MORE ON "CHANGING" WITNESS STATEMENTS AND CREDIBILITY: A CLINICAL NEGLIGENCE CASE

A post yesterday commented upon the difficulties caused when a witness produces two (sometimes contradictory) witness statements. Another example of witness evidence leading to problems at trial can be seen in the judgment of HH Judge Collender QC (sitting as a High Court judge) in Connolly -v- Croydon Health Services NHS Trust [2015] EWHC 1339 (QB).

THE CASE

The claimant was claiming damages for alleged clinical negligence in failing to properly obtain her consent, or halt the procedure, when an angiogram was being carried out. Complications occurred during that procedure which turned it from an angiogram to an angioplasty. The issues related to valid consent and information given before the procedure.

KEY POINTS

• A witness who appears to have given contradictory evidence should be asked about this in cross-examination not by way of a later application.
• A witness who appears to have given contradictory witness statements on key issues is clearly going to have problems in relation to credibility.

THE DIFFERING WITNESS EVIDENCE

The judge had to consider the evidence of witnesses who had different recollections about the events.

THE EVIDENCE

1. I turn now to the evidence. I heard from Mrs Connolly and her husband. For the Defendant I heard from Dr Goulielmos, Nurse Shadbolt, Mr Griffiths and Dr Mechery. I heard expert medical evidence for the Claimant, from Dr Perry, and for the Defendant from Dr Freeman, both consultant cardiologists. For Mrs Connolly I received in evidence written reports, of Dr Steadman, a psychiatrist and ENT evidence from Dr McCombe. I received a character reference from Mrs Connolly’s pastor, at the Christ Central Church, that speaks in warm terms of Mrs Connolly and, in particular, notes that she is one of the “most honest and real people” that he knows.
2. Mrs Connolly told me that she has a clear recollection of what she was told by Dr Goulielmos as set out in her witness statement dated 2 April 2014. In particular, he told her that the angiogram procedure was a

“brilliant and safe test…that there is only a risk to someone with diseased arteries.”

Her evidence was that from this she understood that there was no risk to her as she knew that her arteries were healthy; had she been told there was a risk that healthy arteries could be damaged by the performance of an angiogram, she would not have proceeded with the procedure. It was only because of the advice that she received to have the angiogram, and that the procedure was safe if she did not have diseased arteries, that she decided to go ahead with the procedure.

1. She told me she read the information leaflet given to her. She said in the course of her evidence:

“I just thought I will go because that is what they want me to do. I did not realise what a major operation this was. I was being persuaded by my husband.”

1. She said in her statement that after the procedure began she felt an extremely severe pain in her right arm of which she complained to the medical staff. She said that she heard the doctor, Dr Mechery, say, “is she 32 or 52?” and she said, “I’m 52, ..why does this matter?” to which Dr Mechery replied that younger women usually go into spasm if it is put in the arm. He then said, “We’ll go in her leg instead” to which Mrs Connolly said “I don’t want you to” to which Dr Mechery answered, “It won’t take long as we’ve put it in your leg now.” Mrs Connolly said that she was confused and afraid and that she had lost confidence in the ability of the staff to carry out the procedure painlessly and repeatedly said, “I need this to stop now.”
2. Dr Mechery said, “I’ve seen one side and the artery’s clear and looks good, I just need to get round the other side. It shouldn’t take a minute.” Mrs Connolly said, “I don’t want you to, I need this to stop now. …I then experienced the most excruciating pain of my life across my back and my chest and my jaw.” She said in her evidence before me that in the course of the procedure he was calm, reassuring, sought to put her at her ease and seemed “fine in his attitude.”
3. Mrs Connolly’s case was that Dr Mechery should have abandoned the procedure after she complained of pain in her right arm that was consistent with spasm. She told him at that stage that she wanted it to stop and if he had done so she would not subsequently have agreed to it being continued, whatever the doctor had said to her, and the dissection would not therefore have occurred. She withdrew her consent for the procedure to continue before access was attempted via the femoral route and that she did not complain of “excruciating” pain until after access to her arterial system had been gained by the femoral route.
4. Mrs Connolly was cross-examined about a number of matters. She said she did not know if she would have agreed to the procedure continuing if she had been told that an artery in her heart was blocked and there was a significant danger to her heart; she said she may have agreed.
5. She was asked about a passage in an addendum report of Dr Perry dated 4 June 2013. Amongst the documents listed by Dr Perry at the beginning of that report were the following documents:

6. A detailed statement from Mrs Connolly

7. Medical notes from a telephone consultation on 14.02.2013 with Mrs Connolly

1. The material passage was:

“she [Mrs Connolly] stated that she was particularly uncomfortable during the procedure and asked on at least two occasions that the procedure be stopped and felt that she had withdrawn her consent. She was unaware of a different arterial approach via the femoral artery.”

1. The observation in the last sentence of that quotation was clearly inconsistent with what Mrs Connolly said in her statement of 2 April 2014. Initially, Mrs Connolly accepted in cross-examination that Dr Perry had correctly recorded the position. She was asked, “You were unaware on the day of the procedure of the approach via femoral artery?” To which question she replied “I think so.” Dr Perry accepted in cross-examination that this was the correct reading of his noted record.
2. Later in her evidence Mrs Connolly retreated from this position. She asserted that the pain she suffered, apart from the pain in her right arm, occurred after the femoral approach was adopted. She said that she was not overly sedated.
3. In the course of final submissions an attempt was made on Mrs Connolly’s behalf to put in evidence part, or parts, of a previous statement made by her. It was clear that the application was made to rebut the suggestion that Mrs Connolly had told Dr Perry that at the time of the procedure she was unaware of a different arterial approach being made via the femoral artery. I have not seen that statement and nothing was said when the attempt to use it was made about when the statement was made or whether it was signed. The statement was not shown to the Defence before or during the application and it was made clear on behalf of Mrs Connolly that only part or parts of the statement would be put in evidence. Objection was taken by the Defence to the admission of the statement on that basis.
4. The court indicated in the course of the application that, in line with the authority of Great Atlantic Insurance Company v Home Insurance Company Ltd [1981] 1 WLR 529, the court would not countenance privilege being waived as to only part, or parts, of the statement and after a short adjournment for Mrs Connolly and Counsel to consider the position, the application was not further pursued.
5. The parties’ final submissions were completed on 17 March 2015. On 26 March 2015 Mrs Connolly lodged an application for an order:

“That the Claimant be given permission to re-open her case prior to judgment to address one issue and this is to rebut the allegation that C only became aware after Dr Perry’s telephone conversation on 14.2.13 that access had been gained via the femoral route.”

1. The application was supported by a witness statement from Mrs Connolly’s solicitor, a copy of a witness statement of Mrs Connolly dated 14.02.13, Dr Perry’s notes of the consultation on 14.03.13, and an email from Dr Perry dated 26.03.15, addressing the meaning of his notes.
2. The court was asked to deal with the application at a telephone hearing with a time estimate of 30 minutes and a draft order was attached to the application. I required the parties to attend court for a conventional oral hearing of the application at which I heard full submissions of the parties on the application. At the conclusion of that hearing the position was reached that the parties agreed that I would consider the material submitted in support of the application de bene esse and would include my conclusions upon the significance of the material in my judgment.
3. I will not set out the detail of that material in this judgment. In summary, the evidence supported the contention of Mrs Connolly that before Dr Perry’s telephone call of 14.02.13 Mrs Connolly was aware that in the course of the angiogram, arterial access had been gained via the femoral route. The history given meant that the Defendant had no opportunity to cross-examine Mrs Connolly and Dr Perry upon the evidence placed before the court by means of the application dated 26 March 2015.
4. Mrs Connolly confirmed the evidence in her witness statement as to the effects of the incident on her health and life and her claim for damages. She was asked about a letter from her GP, Dr Byrne, dated 24 September 2009, i.e. three months after the procedure, and in particular the last sentence of a passage in which the doctor reported:

“since discharge she has had significant problems with her combination of dual anti-platelet therapy with stomach cramps and a variety of symptom. Although this was eased to some degree by Ranitidine, the Ranitidine itself also caused other problems. She also complains of some neck tightness when she is stressed but has no problems with exercise and can run and walk the dog without limitation.”

She said in giving this evidence the doctor had, “got the wrong end of the stick.”

1. She was asked about a note from the outpatient cardiac clinic dated 15.10.2009 that read;

“We saw Mrs Connolly to offer psychological support and cardiac rehabilitation following this event. She declined referral to the cardiac rehabilitation and education programme and has indicated that she no longer feels that she would benefit from continued contact with us.”

Mrs Connolly said that she did not want to continue to go to the clinic because the clinic did not understand how to treat her and were not helping her at all.

1. She accepted in cross-examination that she had produced no figures to support her husband’s loss of earning claim earnings and nothing to demonstrate the amount of her own earnings before 2009.
2. I heard from Mr Connolly. He confirmed before me his witness statement dated 27 March 2014 that gave confirmatory evidence of Mrs Connolly’s account of what happened. Much of his evidence was hearsay. His statement was given many years after the events described.
3. For the Defendant I heard firstly from Dr Goulielmos. He detailed to me his standard practice for consent, which he adopts with 300 patients per year. He commented in his evidence upon Mrs Connolly’s evidence about what she said she was told by him about the risks of the angiogram procedure. He told me that these are not the type of comments that he would have made. He said that he would have told her that there was a need to investigate by angiogram because there was evidence that there was something wrong with her heart. He would have given Mrs Connolly the opportunity to ask questions. He would not have told her that her arteries were normal.
4. Ms Shadbolt’s evidence was that she had no specific recollection of the angiogram procedure performed on Mrs Connolly. Her evidence was that if anything unusual happened in the course of a procedure she would know and hear about it because the catheter laboratory was quite small; she had never seen a doctor ignore a patient’s request to stop a procedure. She would have been about a metre away from Dr Mechery during the procedure.
5. Mr Griffiths also had no specific recollection of the angiogram procedure performed on Mrs Connolly. He told me that the log of events he compiled was (perforce) not complete because of his other duties in the course of such a procedure. In the course of a procedure he is located behind a glass screen. He is able to see everything that happens but not always hear everything being said. He noted that he has to be very focused on the various monitors to ensure that the patient remains haemodynamically stable. Mr Griffiths says he cannot recall Mrs Connolly having asked for the angiogram procedure to stop.
6. The evidence of Dr Mechery was of central importance in the case. He described in his written statement of 21 March 2014 how he had reviewed the relevant medical notes on Mrs Connolly and gave his recollection of the procedure carried out on her. It is material to relate his evidence to the event log, and the clinical and prescription records kept in the course of this procedure.
7. At 11.03 a.m. a vasodilator drug having been administered, a catheter was inserted into the Claimant’s right radial artery. Dr Mechery said he managed this, quickly and without difficulty. Thereafter, he made several injections of contrast dye into Mrs Connolly’s arterial system between 11.06 a.m. and 11.08 a.m. These injections revealed the left main and circumflex arteries, but the left anterior descending artery (LAD) could not be visualised because it was occluded. As he could not see evidence of dissection, Dr Mechery suspected that the artery had gone into spasm. He knew it was of the utmost importance that the LAD was opened to prevent permanent disabling damage to the myocardium or even death.
8. Dr Mechery says he removed the catheter with difficulty because of spasm in the right arm. At 11.10 a.m. he attempted to insert a right sided catheter but could not do so because the radial artery was still in spasm. A drug was administered to try and resolve the spasm and the last entry in the event log detailing the attempt to gain access by the radial artery is at 11.23 a.m.
9. As already noted, at 11.20 a.m. a number of drugs were written up in the prescription record, including diazepam and morphine. A clinical record timed at 11.30 a.m. notes:

“c/o [complaining of] chest discomfort, neck pain & back pain

I/V diazemuls, morphine given in divided doses & GTN spray S/L also given

ECG changes noted

Dr Beatt in – proceeded”

1. This entry is consistent with the drugs prescribed at 11.20 a.m. being administered in response to what Mrs Connolly described as the excruciating pain that developed across her back, chest, and jaw, after Dr Mechery said, “I just need to get round the other side.” As already noted above, the point at which Dr Mechery attempted to use a right sided catheter was at 11.10 a.m.
2. Dr Mechery described the situation in his witness statement as follows:

“I had not yet seen the right coronary artery (“RCA”), and I was conscious that we did not know what condition the RCA was in. With the LAD blocked I needed to urgently get access to the coronary arteries.”

1. Considering its importance, I will set out a substantial passage from Dr Mechery written statement evidence that deals with the question of Mrs Connolly’s consent to what followed.

“I do not recall Mrs Connolly requesting the procedure to stop at this point. However, the procedure had now turned into a medical emergency and I was not concentrating on conversations with Mrs Connolly, but rather was concentrating on saving her life and ensuring that all necessary analgesics and sedatives were provided to make her as comfortable as possible in the circumstance. It is possible that Mrs Connolly asked for the procedure to stop due to the pain of predominantly the blocked coronary artery, and also secondarily due to the radial spasms. If Mrs Connolly had asked for the procedure to stop it would not have been possible to do so at this stage without catastrophic and life threatening consequences. I do not recall feeling at any point that Mrs Connolly was “withdrawing consent” and I would certainly recall if this was the case. I do not undertake any invasive procedure without consent unless it is a lifesaving emergency situation. In this case, Mrs Connolly was in a critical situation very soon after the start of the procedure and needed rapid emergency treatment. In this situation it is my job, and the job of the nurses, to try and relieve the patient of any pain and reassure them. I note that intravenous diazepam, midazolam and morphine were administered to Mrs Connolly to provide pain relief and to give sedation. We had a low threshold to give sedative and opiate analgesics intravenously for pain in the catheterisation lab in 2009. We would give as much analgesia as needed and the dose may vary between individuals. Mrs Connolly received multiple doses of diazepam, midazolam and morphine. My angiogram report says a total of 13mg morphine and 6mg of diazepam was administered soon after Mrs Connolly experienced pain. As these are given intravenously, their effect is almost instantaneous. It is standard practice for the nurses to be talking to the patient throughout the angiogram procedure and explain what is happening, as the operator is under great pressure and needs to make very important decisions quickly. However, explaining what is happening to a patient who is in pain and under the influence of the above mentioned drugs is very difficult. I note that that Mrs Connolly says that she believes she may have lost consciousness and she states that her recollection of events is patchy. The diazepam and morphine could have caused her to have a period of no recollection/ 13mg of morphine is a high dose for patient not accustomed to taking morphine and 6mg of diazepam is enough to make a person of low body weight such as Mrs Connolly very sleepy.”

1. In his oral evidence to me, Dr Mechery said that although everything happened very quickly he very clearly remembers the sequence of events. When he saw that Mrs Connolly had a blocked LAD he knew that there were various possible causes, spasm, dissection or thrombosis. Pain for the patient would follow within seconds or minutes. The situation he faced was catastrophic. He thought that the drugs prescribed between 11.20 a.m. and 11.50 a.m. were most likely given one after another. It was likely that he asked for the morphine to be given first and that it would have been given successively in small doses. He called the consultant on duty. He decided to attempt to gain access via the femoral artery. There is an entry in the event log at 11.23 a.m., “femoral approach attempted.” At 11.31 a.m. a catheter was inserted, and Dr Mechery noted that by this stage Dr Beatt, the consultant, for whom Dr Mechery had sent, had arrived.
2. It was put to Dr Mechery that a Cardiac Catheterisation Report that he prepared on 19 June 2009 that noted: “pain back and neck after the angiogram with JL4 6F” evidences the fact that Mrs Connolly only suffered the described pain as opposed to only pain in the right arm from spasm in that arm, after the femoral approach was undertaken. The use of a 6 French catheter was only consistent with the femoral route, not the radial route for which a J5 catheter should have been used.
3. Dr Mechery did not accept that analysis. He told me that the two catheters J5 and J6 were interchangeable and that there was no particular significance in the fact that he had written down J6 rather than J5. He said he might well have used a J5 catheter although he wrote down J6. He told me that a proper reading of the Catheterisation report shows that it was chronologically set out. So reading the report demonstrates that the pain there recorded was experienced by Mrs Connolly early in the procedure in the course of the radial, not the femoral entry of the catheter.

THE JUDGES CONCLUSIONS IN RELATION TO THE WITNESSES

1. There were two possible sources for the assertion that Mrs Connolly was misinformed, her conversation with Dr Goulielmos, and the information sheet.
2. As already noted, I heard evidence from both Mrs Connolly and Dr Goulielmos on their conversation. I was generally impressed by Dr Goulielmos’s evidence and his account of that conversation. I find it hard to accept that he departed from his usual practice when advising Mrs Connolly and used the disputed words in that advice.
3. I consider the evidence of Mrs Connolly on this point. I have to say that, in general, I did not find Mrs Connolly a witness upon whose evidence I felt confident to rely. It is clear from the history I have already given that I have not seen all the statements given by Mrs Connolly in this case. From those that I have seen, I have obtained a developing and sometimes confusing or contradictory case. Similar comments may be made of her evidence before me including that given in cross-examination in respect of her medical and smoking history, the events leading up to, and of, the angiogram procedure, the extent of her recovery and the detail of her claim for damages. I consider that over the years, as a result of the undoubted misfortune of this angiogram procedure that went wrong, Mrs Connolly has persuaded herself of the correctness of a case on a number of issues in this case that are not correct and the question under review is one of them.
4. I turn to the information sheet. It is agreed that this was misleading as noted by the experts. However, having considered all the evidence that Mrs Connolly had before she signed the consent form and considering the legal principles that I must follow as set out above, I agree with the opinion of the experts on this point although I would express the answer to the question slightly differently; I do not consider that Mrs Connolly’s consent was vitiated by the information sheet.

FURTHER ANALYSIS OF THE WITNESS EVIDENCE

1. I should expand on my comment as to Mrs Connolly’s “developing account” of this matter. In general terms, this claim has been characterised by the late service of witness evidence from Mrs Connolly; more specifically, the history already set out in relation to the attempts to introduce rebuttal evidence to deal with the note in Dr Perry’s report as to Mrs Connolly’s lack of knowledge of the femoral route being undertaken does little credit to her case. The most obvious and best opportunity to have dealt with this matter was in re-examination of Mrs Connolly; a familiar forensic step is to put to a witness whose evidence has been challenged on the basis of “recent invention” a previous record of the witnesses’ evidence that contradicts that assertion. That was not done. The matter could have been dealt with by producing in re –examination of Dr Perry the statement of Mrs Connolly referred to in his report to demonstrate that he had misinterpreted Mrs Connolly’s evidence on this point. That was not done. It was not until closing that the initial attempt was made, as already described, to introduce a statement apparently given sometime in 2012, the final attempt being made in respect of a different statement. This whole history raises as many questions as it answers.
2. In particular, what is the content of the statement of 2012? Mrs Connolly has now produced the statement dated 6 February 2013 that is consistent with an account of having been aware of the femoral approach on 19 June 2009. However, I agree with Mr Barnes contention that that statement adds to the impression that her evidence is unreliable, as her evidence on some key issues has become more entrenched with time as demonstrated by a comparison of the content of paragraphs 39, 54 and 56 of the statement dated 6 February 2013 with paragraphs 40, 55, and 57 of the statement dated 2 April 2014.
3. In respect of this matter I consider the further evidence of Dr Perry about this. I have already raised the uncertainty as to which statement was provided to Dr Perry for the provision of his initial report bearing in mind his answers to the questions about this in cross-examination. In any event, that further evidence provides support for the conclusion that Mrs Connolly was unclear as to the events on 19 June 2009. As Mr Barnes contended to me, it is difficult to interpret Dr Perry’s note on 14 February 2013, “wasn’t sure of leg” other than as meaning that when he discussed the claim with the Claimant on 14 February 2013, she was not aware that they had changed the point of access to the femoral artery in the leg. Dr Perry’s evidence in an e mail to Mrs Connolly’s solicitor dated 26 March 2015 about this is as follows:

“My notes are mainly bullet points and in general confirm the statements in the witness statement. I have noted she was unsure of what was going I [sic] the leg meant(verbatim note (‘Wasn’t sure of leg’).

I think this is what my sentence at para 1c ‘she was unaware of a different arterial approach via the femoral artery’ means. I think I meant she was unsure about the fact/concept one could go in the leg not that she was delirious to the point of not knowing it was happening at all.”

THE RESULT

The claimant’s action was unsuccessful. The judge made some observations in relation to damages.

OTHER POINTS

There is an important point in relation to the evidence in relation to loss of earnings and care claims.  There was no evidence to support these claims, even if liability had been established.

LOSS OF EARNINGS AND CARE CLAIMS

1. Mrs Connolly’s claims for loss of earnings and care are not supported in the Joint Statement of the cardiologists, nor by the evidence before me and I reject these claims.

RELATED POSTS: CLINICAL NEGLIGENCE AND WITNESS EVIDENCE

• “Similar fact evidence” in clinical negligence cases.
• Witness credibility, Bolam and Clinical Negligence: a High Court decision.
• More on evidence and causation: a clinical negligence case.
• More on adverse inferences from absent witnesses: a clinical negligence case.
• Lay evidence and expert evidence in clinical negligence:more is not always better.

RELATED POSTS ON WITNESS CREDIBILITY

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6.  Which witness is going to be believed? A High Court case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. Witness statements and witness credibility: getting back to basics

9. Witness credibility: what factors does the Court look at?

10. That “difficult second statement”: its hardly ever going to be a hit.