PROVING THINGS 26: DISTINGUISHING BETWEEN WHAT YOU CAN REMEMBER AND WHAT YOU NOW THINK YOU DID
There have been a large number of posts on this blog about witness evidence, in particular the way that the courts assess the accuracy of evidence. A surprising number of these have been in the context of clinical negligence claims. Another example of the difficulties concerned can be seen in the judgment of Sir Alistair MacDuff in The Executors of the Estate of John Raggett (deceased) -v- Kings College Hospital NHS Foundation Trust  EWHC 1604 (QB). It is a prime example of the court distinguishing between what a witness can remember and what a witness states they remember.
(It is easy here to put all the blame on an individual witness. However cases like these emphasise the need for considerable skill in taking witness statements. In particular the importance of getting a witness to distinguish between (i) what they can actually remember; (ii) what they think they did; (iii) their normal practice”.)
“… there is nothing in the notes to say that he did make this important positive finding. The first inkling that one could have, that the pedal pulses were tested, was when Mr Franklin signed his witness statement. He had to rely solely on memory and upon what he says would have been his normal practice. More remarkably, there is no note at all of this first examination. Not a single written note in the medical records”
“This [change of recollection] is quite incredible evidence. Equally incredible, I fear, is the submission, made on his behalf, that this volte-face in some way increased his credibility and the quality of his evidence.”
“…his change of mind on the second occasion was not because he had had a moment on the road to Damascus and remembered, many months after he signed his statement, that he had not after all tested the pulses. And, as ever, there was nothing in his notes to assist him”
“Only he knows how far he deliberately tailored his evidence to suit his case. In my judgment, there was a considerable amount of wishful thinking and I suspect he may have persuaded himself that he could remember more than was in fact the case.”
The claimants were bringing an action in clinical negligence following the death of Mr Raggett. The primary allegations related to the failure of treating doctors to make proper investigation or refer Mr Raggett for vascular opinion.
It is worthwhile considering the judge’s observations in relation to one key witness, a treating doctor. The doctor stated that he had carried out tests for pedal pulses.
THE JUDGE’S COMMENTS ON THE KEY WITNESSES EVIDENCE
But it went further than that. In his witness statement (and in the witness box) Mr Franklin stated that he too had tested the pedal pulses on 23 October 2010 and had found them to be present. Remarkably, he made no clinical note to that effect; indeed he made no note at-all of his examination. In fact, he did not claim to have an independent recollection of testing the pedal pulses but he relied on what he said was his normal practice. He put it this way:
“In line with my usual practice, I am certain I palpated the pedal pulses on both his feet and judged them to be present. Had this not been the case I would have requested an urgent vascular opinion.”…
First and foremost, I just do not accept that Mr Franklin did find a positive pedal pulse on 23 October. In my judgment, he did not do the test. I will need to deal with this in more detail when I come to consider breach of duty. I found Mr Franklin to be an unimpressive witness with, I regret to say, a slapdash attitude to his practice of medicine. This was exemplified by his wholly inadequate note taking. He did not consider possible vascular cause. I am satisfied that it never crossed his mind; and he did not do the test. In his case, this was not a false positive; he simply did not do the test
Mr Franklin saw the deceased at midday. Most remarkably, he made no clinical note of this consultation. Nevertheless, in his witness statement (taken in the usual way as his evidence in chief) Mr Franklin claimed a good memory of the consultation. In fact his recollection of events, which contains much detail, is remarkable, given that he made no clinical note and his only near contemporaneous record was a letter, which he wrote some days later and was of limited value as an aide memoire. He said he could recall a telephone call from the GP informing him that Mr Raggett had fallen at home and was in much pain. He told me that he would have read the clinical notes already made, by which he could only mean the notes made by Dr Diana. The detail continues:
“I remember this consultation well. He was exhibiting the classical physical sign of diffuse left sided limbs from dense long-term paralysis (hemiplegia) from a stroke, which had occurred many years earlier. He could barely move his left arm and held it in a fixed position. He had restricted movements in his left leg and could not walk. His left foot was swollen and a discoloured purple colour. In terms of the history I elicited, Mr Raggett told me he had been suffering severe pain in the left foot and leg for a number of weeks and that he had recently had a fall, which had made the pain in his left foot worse. He told me he had been in atrocious pain overnight but that this had improved. He did not report any symptoms of claudication (pain or cramping) in the lower leg whilst walking or any pain whilst resting at night.”
Mr Franklin also purported to recall that Mr Raggett was displaying severe hyperalgesic pain over the left heel and lower leg; there was no delay in capillary refill, no coolness to touch as well as two palpable pedal pulses (witness statement 4/1068-9). There is support for some of this detail in Mr Franklin’s letter, some days later (08.11.10) to Dr Gupta, the deceased’s GP (8/216): “he was in severe pain and his left foot was swollen as well as discoloured”. Mr Franklin diagnosed neuropathic pain and referred Mr Raggett by telephone to Dr Hanna, the Sixth Defendant, a consultant pain specialist.
Do I accept that evidence? There are, I am afraid, a number of remarkable facts about Mr Franklin. First and foremost, there is nothing in the notes to say that he did make this important positive finding. The first inkling that one could have, that the pedal pulses were tested, was when Mr Franklin signed his witness statement. He had to rely solely on memory and upon what he says would have been his normal practice. More remarkably, there is no note at all of this first examination. Not a single written note in the medical records. The only remotely contemporaneous record of that examination is to be found in the letter, dated 8th November, some ten days later (8/216) and which makes no reference to pedal pulses or that ischaemia/vascular disease had been considered and excluded.
It was also clear to me that Mr Franklin had failed to read carefully the note, taken earlier that day, by Dr Diana the RMO. This set out the recent history, which included that the pain, of which Mr Raggett was complaining, had developed over four weeks, albeit that it had been exacerbated by recent trauma. Mr Franklin’s initial diagnosis (of trauma induced pain) did not tally with that history. He did not consider that there was any need for any further investigation; all that was required was pain relief. And it was in those circumstances that he referred the deceased to Dr Hanna.
There is another curious feature, which I find disturbing. In his witness statement, Mr Franklin stated (again without the benefit of any note in the records) that, on his later examination on 23rd November, he had again tested the pedal pulses and found them to be present. That witness statement was signed in the usual way and with the usual caution. It was not until the opening written submissions were made that it emerged that Mr Franklin had reflected and now “remembered” that he had not in fact tested the pedal pulses on that later date! This is quite incredible evidence. Equally incredible, I fear, is the submission, made on his behalf, that this volte-face in some way increased his credibility and the quality of his evidence.
I am sorry to have to say that I have reached the very firm conclusion that I am unable to accept his evidence upon this and many other issues. I am entirely satisfied that he did not test the pedal pulses on either occasion. It may also be noted that Dr Hanna, who saw Mr Raggett later on 23 October, gave evidence that the pain was so bad that it would have been cruel – indeed “inhumane” – for Mr Raggett to have the pedal pulses tested and he (Dr Hanna) did not do so.
Mr Franklin’s claim that he did so on the first occasion was necessary to his defence; his change of mind on the second occasion was not because he had had a moment on the road to Damascus and remembered, many months after he signed his statement, that he had not after all tested the pulses. And, as ever, there was nothing in his notes to assist him. I spent some time watching Mr Franklin carefully when he gave evidence and, I am afraid that I judged him to be wholly unreliable. I am satisfied that from the outset he adopted a very casual, even cavalier, approach to Mr Raggett’s case. He never considered vascular disease; it never crossed his mind. His carefree attitude is reflected in the lack of any written note from him on the 23rd; and the most cursory notes thereafter.
In the course of final submissions, I indicated to Mr Horne QC that, although I found Mr Franklin to be an unreliable witness, I would not take the view that he had been deliberately dishonest. Only he knows how far he deliberately tailored his evidence to suit his case. In my judgment, there was a considerable amount of wishful thinking and I suspect he may have persuaded himself that he could remember more than was in fact the case. I am not at-all sure that Mr Franklin had acquainted himself with the background, nor that he was in any way alerted by Mr Raggett’s hemiplegia to the fact that he was an arteriopath. Nor am I sure that, when he made his witness statement, he had anything more than the haziest recollection of this consultation.
There are other reasons why I am unable to rely upon Mr Franklin’s evidence. If he had excluded vascular or ischaemic causes, he would surely have said so in the notes or, failing that, in the letter to Dr Gupta. He did neither. In re-examination he said that he would have spoken to Dr Hanna at the time, probably on the telephone; he would have (my emphasis) told Dr Hanna that the pedal pulses were palpable. Dr Hanna did not remember such a conversation. That conversation, of course, did not happen. This was another example of Mr Franklin’s approach to his evidence. There was nothing in his witness statement about it. It was a self-serving answer given on a whim.
I am afraid that Mr Franklin’s memory of the condition of the foot, at the time of his various examinations, was selective. I regret to say that I cannot fully accept his descriptions of the state of the foot. Where a clinician (Dr Diana for example) or a nurse has recorded colour, temperature or swelling in the foot, I am obviously able to accept the evidence. Where the Defendant has made a contemporaneous note, I also accept it – albeit that there are few indeed. But I am not prepared, in the absence of any independent evidence, to accept the unsupported evidence of the Second Defendant as to the condition of the foot. He purports to have an independent memory; but in my judgment, his evidence has been tailored, consciously or unconsciously, to support a defence that all the signs pointed to a neuropathic cause for the pain. He found it difficult to accept that he had not even considered a vascular cause; but I find, on an overwhelming balance of probabilities, that he did not.
WITNESS EVIDENCE AND WITNESS CREDIBILITY IN THE CONTEXT OF CLINICAL NEGLIGENCE ACTIONS
- Contemporary documents: clinical negligence and medical notes.
- Witness evidence: medical notes and credibility
- Witnesses, trials and accuracy of recollection: another example.
- Witness trials and accuracy of Recollection (II)
- Proving things: “He said, she said”: the difficulties of recollection.
- Proving things: “That’s what I always do” & proving causation.
- Evidence and accuracy of recollection: another example in the High Court
- Witness evidence and contemporary documents: the records may not be right.
THE “PROVING THINGS”: SERIES
- 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
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).