PROVING THINGS 10: "HE SAID, SHE SAID": THE DIFFICULTIES OF RECOLLECTION
In Jaciubek -v- Gulati  EWHC 269 (QB) Mr Justice Foskett faced a familiar problem of matching up recollection evidence with (incomplete) medical notes. There are important practical points relating to the accuracy of recollection and the judicial scrutiny of contemporary notes.
“The courts are familiar with the proposition that people will persuade themselves after an event that the obvious course in that event would have been to do a particular thing and that they did do it when in fact they did not”
“However, it is important to recognise what goes on in the “real world” rather than adopting an unrealistically high expectation of notes made in the early hours of the morning in what was probably a busy A & E Department at the end of a night shift starting at 8 pm the previous evening…There is always a temptation in the courtroom to subject these hastily written notes to a contextual and linguistic interpretation that the circumstances of their creation do not justify.”
- The claimant was found to be honest but mistaken.
- The medical notes played a key part, even though far from perfect.
- The medical notes should not normally be subject to a close “contextual and linguistic analysis”.
- There was an unsuccessful attempt to argue that a document was indicative of the relevant standard of care even though there was no evidence that the document had been circulated to GPs at the relevant time.
THE MEDICAL NOTES
The hospital doctor had no recollection of the examination. She was notified very late of the potential claim and had to rely wholly upon her notes. She observed that she was being supervised at the time and there had been no criticism of her note taking by her supervisors.
I should say that merely because her note taking had not attracted criticism from those who supervised her does not of itself mean that, objectively speaking, they are above legitimate criticism. However, it is important to recognise what goes on in the “real world” rather than adopting an unrealistically high expectation of notes made in the early hours of the morning in what was probably a busy A & E Department at the end of a night shift starting at 8 pm the previous evening…There is always a temptation in the courtroom to subject these hastily written notes to a contextual and linguistic interpretation that the circumstances of their creation do not justify.
EVIDENCE OF SUBSTANDARD PRACTICE BY THE GP
An expert for the claimant relied upon Scottish Intercollegiate Guideline Network (“SIGN”) guidance as evidence of the relevant standards.
“When I questioned the evidential status of the SIGN guidelines for the purposes of this case, Dr Bracey said that they constituted recommendations for GPs and that it would represent unacceptable practice for GPs to be unaware of them or, at least for the purposes of this case, to be unaware that a thunderclap headache should now be considered as one that could take up to five minutes to reach maximum intensity. On that view, and given the issue concerning “gradual” onset of headache, Dr Bracey appeared to have been advancing the proposition that Dr Gulati would have been falling below the standards of a reasonably competent general practitioner if he did not realise that a severe headache that took five minutes to develop was a “red flag” sign that suggested the need for further examination.
I gave Mr Boyle the opportunity to cross-examine Dr Bracey further on this and, if I may say so, he quickly exposed the weakness of Dr Bracey’s position. The SIGN guidelines are not referred to in Dr Bracey’s report, did not figure in his discussions with Dr Norfolk, he could not say how they were disseminated to GPs in England and could not say whether, in June 2010, they were indeed circulated to GPs in England. He had to accept that the “up to five minute” approach had not found its way into other literature, for example, the Oxford Handbook of General Practice. Dr Norfolk, when he gave his evidence, said that he, as a GP, had never been circulated with the SIGN guidance he also said that the guidance was, in any event, not to be seen as setting minimum standards of care. Mr Richmond, the Claimant’s A & E expert, said that he would not expect the average A & E junior doctor to be au fait with the SIGN guidelines.”
KEY POINTS OF THE CLAIMANT’S EVIDENCE
There were key points of the claimant’s evidence that were of considerable importance in the outcome.
- Her witness statement stated she saw the GP “the next day”. In fact she saw him four days later.
- The claimant said she had told all of the doctors key information. None of them had any record of this.
“The courts are familiar with the proposition that people will persuade themselves after an event that the obvious course in that event would have been to do a particular thing and that they did do it when in fact they did not. Might it be that the Claimant, in hindsight and in the knowledge that she had suffered a “mini stroke” that evening, has thought subsequently that the incident in the church was so serious that she ought to have seen a doctor about it immediately and she has persuaded herself subsequently that she did? I can only raise the question without answering it directly, but taken with certain other matters to which I will refer there is a basis for thinking that this may be so.”
“Whilst there are aspects of their note keeping that were not adequate, I think it highly likely that each would have recorded it even if they felt that it was a diagnosis they would dismiss. Dr Gulati, in particular, noted what he perceived the Claimant’s complaint to be. Whilst I have no doubt that the Claimant now genuinely believes she did say this on each of the occasions referred to, I cannot accept that she did. Her belief that she did so maybe derived from the fact that she was told in Canada that what happened on 17 June and 1 July were “mini-strokes” and she now feels that she said something along these lines to the doctors and paramedics as indicated. Regrettably, I do not think I can so conclude.”
NOTE THAT THIS IS AN HONEST BUT MISTAKEN WITNESS (THE MOST DIFFICULT KIND)
As Mr Justice J.W.Quinn stated in the Canadian case of The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii)
“Sincerely believed memories that are innocently incorrect become more problematic for the court than do intentional lies.”
Similarly the judgment of Mr Justice Jay in Jacobs -v- King’s College Hospital NHS Foundation Trust  EWHC 121 (QB)
“This case raises a not unfamiliar judicial conundrum. On the one hand the court is confronted by evidence from health professionals who can have no specific recollection of this patient and are therefore compelled to rely on their standard practice and (on the instant facts) relatively sparse contemporaneous records. On the other hand the court has a lay witness, supported to some extent by her mother, who can give a reasonably compelling account of events, and is wholly convinced in her own mind that the first operation was a failure”
There are numerous posts about witness evidence on this blog. These are links to the issues discussed specifically in a clinical negligence context.
- 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.
- Evidence and accuracy of recollection: another example in the High Court.
- 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.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts