WITNESS STATEMENTS IN CLINICAL NEGLIGENCE CASES: IDENTICAL WITNESS STATEMENTS DID NOT DAMAGE CREDIBILITY (THIS TIME)
I spent a day this week giving a seminar to a specialist group of clinical negligence lawyers on the importance of witness statements. I mention this because, as always happens, there is a clear example of this in the judgment today of Mr Justice Holroyde in Haywood -v- University Hospitals of North Midlands NHS Trust  EWHC 335 (QB). It would have been a perfect example to use earlier this week.
“He was also cross-examined about the fact that large parts of his witness statement are in identical terms to that of his wife, despite which he insisted that he had drafted his statement. I think he must be wrong about that; but it does not cause me to doubt his credibility on other matters, because it may in part be a matter of semantics and in part an example of the complications which can arise when statements are drafted by lawyers on the basis of accounts given to them by witnesses.”
The claimant was bringing an action alleging negligence when she was discharged from hospital. It was her case that she was discharged too early. Her symptoms meant she should have stayed for further checks and treatment. If she had stayed in hospital the complications she suffered from (including a stroke) would have been avoided. One major factual issue was her condition whilst in hospital and shortly after her discharge.
THE DIFFERING ACCOUNTS
The defendant’s witnesses put forward a picture of the claimant having improved and only deteriorating at a later date. The claimant’s case was that she was unwell throughout. The judge considered the witness evidence.
It was put to the Claimant in cross-examination that the overall picture was that she did not begin to feel unwell until a few days after the birth. The point was made that the pre-action protocol letter sent by her solicitors had referred to her discharge from hospital on 19 th September 2010 and had then continued “After a few days the Claimant started to feel unwell and she noticed that her wound appeared to be infected.” She denied the suggestion, and repeated that she did not feel right, but she did not know how she was supposed to feel.
Mr Budimir was cross-examined about the terms of a letter which he sent to the hospital on 4 th November 2010. He agreed that it did not refer to the Claimant being ill when she was discharged from hospital (though it did say that she was discharged “despite her having a rapid heart rate”), but explained that was because he wanted to keep the letter short and to emphasise the main point of the seriously infected wound. He had ended the letter by asking:
“Can you please help me understand how my partner, a healthy and fit woman of 36 years of age, could have had such a serious stroke after routine child birth? Could you please send me her medical records so I can try to understand how this has happened?”
He repeated in cross-examination that the Claimant had been shaking and unwell whilst she was in hospital, and whilst at home she had been in pain, suffering constant headaches and unable to sleep.
He was also cross-examined about the fact that large parts of his witness statement are in identical terms to that of his wife, despite which he insisted that he had drafted his statement. I think he must be wrong about that; but it does not cause me to doubt his credibility on other matters, because it may in part be a matter of semantics and in part an example of the complications which can arise when statements are drafted by lawyers on the basis of accounts given to them by witnesses.
My conclusions and findings in relation to the factual evidence are as follows.
I accept the Claimant and her partner as truthful witnesses, doing their best to remember how the Claimant felt at a difficult time more than 6 years ago, and I found their descriptions of the Claimant’s condition convincing. Although Miss Harrison skilfully made forensic points about the terms in which the complaint to the hospital was first expressed, and about the suggested changes from the accounts given by the Claimant and Mr Budimir in their witness statements, I do not regard those points as reasons not to accept their oral testimony. I specifically reject the submission that they have altered their account because of a conscious or unconscious wish to strengthen a claim for compensation. So far as Mr Budimir’s letter of 4 th November 2010 is concerned, his focus was understandably on the question which he posed in that letter, and he would probably have expressed himself in different terms if he had understood that a more precise analysis was necessary of when his wife first felt unwell. As to the Claimant, my assessment is that she is not by nature a forceful character. During the time she was in hospital her baby was surely the focus of her attention, and I readily accept her evidence that although she felt unwell, she did not know whether that was how she was supposed to feel shortly after being delivered of a child. It is not surprising that a new mother in such circumstances, experiencing difficulties and pain in trying to breast feed her baby, should not say much about her own general condition. I accept her evidence that she was told that she had (not had had) a high pulse rate but it would settle: in my view, a statement which would have conveyed to her that there was nothing for her to worry or complain about. It may be that in response to questions asked of her from time to time, she expressed herself in terms which did not forcefully indicate that she was feeling unwell; but nothing in the notes suggests she ever stated in terms that she was feeling entirely well. In those circumstances the terms in which entries have been made in the various medical records do not cause me to doubt the Claimant’s account of her condition.
The evidence of the Claimant and Mr Budimir was that she felt unwell when she left the hospital, that her wound was pink when it was seen by the community midwife on 20 th September, and that it began to ooze on 21 st September. The Defendant disputes that evidence, contending that it is inconsistent with other evidence and unreliable. However, I did not find the community midwife Mrs Stone an impressive witness. Her notes, on which she relied, did not record any pinkness of the wound on 20 th September; but nor did they record any oozing on 22 nd September, when the Claimant visited her GP. Strikingly, her notes say nothing about any gaping of the wound on 28 th September, the date on which a 1cm gap at the right hand side of the wound was recorded when the Claimant attended hospital. In my view, Mrs Stone’s notes are at best incomplete, and do not cast any doubt on the evidence of the Claimant.
The Defendant also relies on the fact that the GP’s record of the Claimant’s attendance on 22 nd September refers to a “distinct flare” but says nothing of any oozing. However, the GP’s note does not record any temperature or pulse measurement, and he does not appear to have taken a swab from the wound. Those are surprising omissions, given that the GP referred to wound infection and prescribed broad spectrum antibiotics. They suggest that it was a brief examination, recorded in very brief terms. This record does not cause me to doubt the reliability of the Claimant’s evidence.
In those circumstances I accept what the Claimant and Mr Budimir told me about the condition of the wound in the days after her discharge from hospital. I find that the wound was oozing on 21 st September, which is why she went to the GP on the following day. I further find that after her visit to the GP on 22 nd September the Claimant continued to feel unwell, and for that reason went to the hospital on 25 th and 28 th September. On the second of those occasions, I readily accept her evidence that the reason she did not remain at the hospital was because she wanted to care for her baby at home and not (as was suggested in cross-examination) because she did not feel unwell. The fact that she returned to the hospital that night clearly shows, to my mind, that she felt seriously unwell.
I therefore accept and find that the Claimant did in fact feel unwell whilst in hospital and in the days after being discharged. It follows that I reject that part of the Defendant’s case which is based on the proposition that the Claimant did not begin to feel unwell until a few days after the birth.”
RELATED POSTS: WITNESS EVIDENCE IN CLINICAL NEGLIGENCE CASES
- Contemporary documents: clinical negligence and medical notes
- Witness evidence, recollection, reconstruction & clinical negligence.
- Witness evidence, clinical negligence and clinical notes: a case in point
- More on “changing” witness statements and credibility: a clinical negligence case
- Lay evidence & expert evidence in clinical negligence cases: more is not always better
- More on adverse inferences from absent witnesses: a clinical negligence case
- More on evidence and causation: a clinical negligence case
- Witness credibility, Bolam and clinical negligence: a High Court decision.
- Similar fact evidence in clinical negligence cases