PROVING THINGS 6:"THAT'S WHAT I ALWAYS DO" & PROVING CAUSATION

We have looked before at the view that a judge takes of a witness who, honestly, states that they have no recollection of an event but recounts their normal practice.  In Long -v- Wester Sussex Hospitals NHS Trust [2016] EWHC 251 (QB) the judge did not accept the evidence of  normal practice.  The claimant, however, failed because there was no evidence that the negligence caused any additional pain, suffering or loss.

KEY POINTS

• A judge will not always accept evidence of “normal practice”.
• The burden remains on the claimant to establish causation, even if liability is admitted or established.
• The action failed because, although the defendant was negligent, there was no evidence that the negligence led to any additional pain or suffering.

THE CASE

The claimant brought an action in clinical negligence claiming negligence in the delay in diagnosis and treatment of a post operative infection.  One of the issues was whether a junior doctor had taken adequate steps before the claimant had been discharged .

THE DOCTOR’S EVIDENCE

1. Dr Jefferies told me that he had no recall of Mr Long’s case but he said that he “would have” discussed his case with a senior colleague before authorising his discharge.

2. Neither Mr. Taylor nor Mr. Singh said they had been consulted by Dr Jefferies; they were not on duty at the time. No record of who was the orthopaedic consultant on duty at the relevant time has been produced by the Defendants. Dr Jefferies accepted that there is no clinical note of his evidencing any discussion by him with a senior colleague before he authorised Mr Long’s discharge.

THE JUDGE’S FINDINGS ON THE EVIDENCE OF “NORMAL PRACTICE”

1. I will deal firstly with the evidential issue, did Dr Jefferies consult with a senior colleague before he authorised the discharge of Mr Long on 30^thMay 2008?

2. I am satisfied that he did not. As already noted, Dr Jefferies has no recollection of doing so and can only say that he would have done so. I find it hard to accept that if he considered it important to consult on Mr Long’s case with a senior colleague he would not have thought it equally important to note that discussion in Mr Long’s medical notes. In my judgment, faced with the clearly expressed view of Miss Williams that from a physiotherapy point of view Mr Long was fit for discharge that day, combined with the improved clinical picture in Mr Long’s case and the keenness of Mr Long to return home Dr Jefferies, a junior member of the orthopaedic team, thought it appropriate, upon his own authority, to discharge Mr Long.

(Ultimately, however, the case failed on causation. The claimant failing to establish that the negligence had made any difference).

THE JUDGE’S FINDING ON CAUSATION

1. A significant step to control the infection was taken on 5^th May 2008, when broad spectrum intra-venous antibiotics were administered to Mr Long. Even if Mr Long had stayed in the hospital from 30^th May until 5^th May 2008 I consider it is far from proved that antibiotics would have been prescribed before or much before that time by the medical staff. On the evidence I have heard, in the absence of an obviously infected wound, it would not have been appropriate to start antibiotics until either an aspiration was positive for infection or the patient had deteriorated to the point where it was appropriate to prescribe broad spectrum antibiotics empirically. I am not satisfied on the evidence before me that the breach of duty that I have found occurred, resulted in a delay in the prescription of antibiotics to Mr Long.

2. I turn to the admitted delay of four days in undertaking debridement between 6^th and 10^th May 2008. I accept that in either case, Mr Long would in any event have been in hospital, in bed, in pain, and unwell with septicaemia, and there is no evidence before me to the effect that his condition would have been materially better, or if better, the extent to which it would have been better during that period. Ironically, as was explained to me by Professor Atkins, with earlier diagnosis, Mr Long might in fact have had to undergo a further surgical procedure.

3. In my judgment, there is no sufficient evidence before me upon which I could, or should, find that the Defendants’ breaches of duty caused damage to Mr Long upon which I could base a quantified award of damages for pain, suffering, and loss of amenity

RELATED POSTS

• Evidence and accuracy of recollection.
• Evidence, proof and documents: medical records not definitive of condition.
• Witness credibility, attendance notes and findings of fact.
• Witness statements, clinical negligence and clinical notes: a case in point
• More on changing witness statements and credibility: a clinical negligence case.
• Lay evidence and expert evidence in clinical negligence: more is not always better.
• Adverse inferences from absent witnesses: a clinical negligence case.
• Evidence and causation: a clinical negligence case 
• Witness credibility, Bolam and clinical negligence: A High Court decision.

• Similar fact evidence in clinical negligence cases.

THE PROVING THINGS MINI-SERIES

• Proving things 5: witness statements and failing on causation.
• Proving things 1: Civil Evidence Act notices will not cut it.
• • Proving things 2: evidence to support a claim for damages must be pitch perfect.
  • Proving things 3: the complete absence of evidence means the court will not speculate
  • Proving things 4: Witnesses who just aren’t there.