WITNESSES TRIALS AND ACCURACY OF RECOLLECTION (II)
The previous post dealt with a case where a judge had preferred the evidence of the medical practitioners in a clinical negligence case. As is so often the case a judgment reported on the same day shows a case where the judge came to a different conclusion. In Arkless-v- Cadwaladr University Local Health Board  EWHC 330 (QB) Mr Justice Dove rejected the evidence of the doctor based on his “normal practice”.
- This is a case where neither party could give direct evidence of the nature of the examination that took place.
- The judge used the documentary, and expert, evidence in the case to find that the examination had been inadequate.
The claimant claimed damages for negligence following a failure to diagnose a wrist fracture in an examination.
Having waited in the waiting room she was called and seen by Dr Atkins. He examined her wrist. She was unable in her evidence to describe the detail of the tests which he undertook in examining her, or the manner in which she was examined physically by Dr Atkins. For his part Dr Atkins was unable to state definitively how he had examined the claimant since with the passage of time and the number of patients he had seen in the interim he no longer, understandably, had any independent direct recollection of what had occurred. In his witness statement Dr Atkins describes how at the time of the examination and for some period earlier that he habitually examined a wrist in order to examine whether or not an injury to the scaphoid bone could be excluded. In his witness statement he describes the procedure which he usually adopted in the following terms:
“I examined Ms Arkless’ wrist by testing for scaphoid tenderness by palpating the wrist joint and anatomical snuff box to do this I place my thumb in the anatomical snuff box (between the extensor and abductor tendons of the thumb and distal to the radial styloid) and with my index finger on the scaphoid tubercle gently squeeze with reasonable pressure to elicit any tenderness. Then I tested for tenderness on axial compression by holding the wrist and thumb in each hand and gently extract and compress the joints between.”
“Saving a goal hypertext L wrist/hand. Tender + swelling to distal radius/wrist. ASB non tender no pain on axial compression. Pins & needles to ulnar nerve distribution but movements ok. Xray wrist.”
EVIDENCE FROM THE CLAIMANT
The claimant denies that she was advised to come back to the hospital and return to the Emergency Department if her wrist got worse. She maintained that all that the doctor had said was that she had sustained a bad sprain which would heal in 4-6 weeks and that she was not told to return if matters did not improve. She explained that this was different from the advice when she had previously attended hospital with a fracture to her toe and, on a separate occasion, to her back. On those occasions she had been clearly told to return if matters did not improve or if they worsened. In this respect I accept the evidence of the claimant who was throughout an entirely credible historian and who made no attempt in any way to exaggerate or embellish her claim. Where she was unable to recall an aspect of what had occurred she was entirely candid. The suggestion that she was told to return if matters did not improve or got worse is not supported by anything contained within the notes. Furthermore it is inconsistent with what in fact occurred and which I shall set out below. Thus insofar as there is any difference in this respect between the evidence of Nurse Rycroft and that of the claimant I prefer the claimant’s account.
THE DOCTOR’S EVIDENCE
The first question which arises in the light of that conclusion is whether or not Dr Atkins in fact undertook a competent examination on 24th April 2009, administering tests to elicit responses in relation to all three tests. It has to be recognised that there is no direct evidence upon which reliance can be placed in respect of what precisely he did when he undertook his examination. He has no independent memory himself but relies upon his usual practice; the claimant has no direct recollection of the precise nature of the examination. The issue as to whether or not, therefore, a competent examination eliciting responses in respect of all three tests has to be approached on the basis of such evidence as is available. I am satisfied on the balance of probabilities that, unfortunately, Dr Atkins did not undertake an examination which addressed and elicited responses in relation to all three tests and that, therefore, his examination fell below the requisite standard of care in order to satisfy to the Bolam test. My reasons for reaching that conclusion are as follows.
Firstly, it is necessary to observe that his notes compiled at the time do not record any separate results in relation to the scaphoid tubercle test. He contends that by virtue of the technique which he deployed, rolling up the anatomical snuff box test with the scaphoid tubercle test, that his record in relation to the anatomical snuff box test effectively comprises a result in relation to both tests. I am unconvinced by this suggestion. Firstly, in addition to the absence of a record for the scaphoid tubercle test in the contemporaneous notes, it is also in my view of some importance that in the subsequent correspondence relating to the claimant’s complaint there is no reference to the undertaking of a test of tenderness at the scaphoid tubercle or that such could be read into the result in relation to the anatomical snuff box test. Secondly, whilst I do not doubt Dr Atkins’s explanation of his usual form of examination it is accepted on all sides to be unconventional. All of the medical experts who expressed a view indicated that their practice was to administer each of the three tests separately and record the results from them separately. Two points in my view arise. Firstly, if the two tests are going to be rolled into one in the manner describe in the manner by Dr Atkins the precise administration of the two tests in one action would undoubtedly require a particular concentration upon ensuring that both tests are indeed embraced by the one manoeuvre. Secondly, failure to administer the three tests separately avoids the discipline of having to undertake and in particular record them separately. These features of Dr Atkins’s technique support the potential, which in my view on that balance of probabilities occurred here, for the failure to adequately administer and elicit a result for scaphoid tubercle tenderness.
The final piece of the evidence which is in my view persuasive in relation to this issue is the statistical material as to the number of patients who have a negative response to all three tests but nevertheless have a demonstrated fracture. As set out above if the claimant had been competently examined and negative responses elicited to all three tests she would, as a person who in fact had a fracture on the balance of probabilities at the time, be one of less than 4% of the total of patients who in fact have a fracture.
All of these features combine to drive me to the conclusion on the balance of probabilities that, on this particular occasion, Dr Atkins failed to provide the claimant with a reasonable standard of care and treatment in that he failed to administer and elicit a result to all three tests and in particular he failed to administer and elicit a result to the scaphoid tubercle test.”
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 basics9. Witness credibility: what factors does the Court look at?10. That “difficult second statement”: its hardly ever going to be a hit.11.Assessing the credibility of a witness: it is a matter of communication.
- The Yeo case: witness evidence and credibility.
- Witness credibility, attendance notes and findings of fact.
- A quick word on witness credibility: what the butler said
- Another assessment of witness credibility
- Proving things 10: “He said, she said”: The difficulties of recollection.
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.
- Witnesses, trials and accuracy of recollection: another example