CLINICAL NEGLIGENCE, ACCURATE EVIDENCE AND A REMARKABLE CHANGE OF ACCOUNT BY THE CLAIMANT’S WITNESS

The judgment in  Britchford v Staffordshire And Stoke-On-Trent Partnership NHS Trust [2018] EWHC 2109 (QB) is another example of a clinical negligence claim that rested on the accuracy of medical evidence.  A feature of the case is that the claimant did not give evidence and the treating practitioner could not remember the consultation.  This case shows a major change of evidence by the claimant’s key witness during the course of giving evidence. Further the fact that the practitioner was largely reliant on his notes did not impact upon  his credibility, if anything it enhanced it.

THE CASE

The claimant brought an action for negligence. She attended a walk in health centre complaining of a painful right wrist. The problem was diagnosed as tendonitis, a splint and analgesia was supplied.  The following day the claimant suffered an ischaemic stroke.  She was left with marked physical problems. She brought an action for clinical negligence. The judge was trying the issue of liability only.

THE DISPUTE

The case centred on what was said and seen during the attendance at the health centre.

The claimant’s case was that she had a “cold blue hand” at the time of attendance.  This had not been denied by the defendant when responding to a letter of complaint.

The claimant did not give evidence, but relied on a witness statement under a Civil Evidence Act notice, and the evidence of her partner who attended at the centre.  The treating nurse practitioner could not remember the consultation (which was in 2011) and was largely reliant upon the medical notes.

THE JUDGMENT

One major issue was whether the claimant had a “cold blue hand” when she attended.  However the witness called by the claimant gave a major change of evidence when challenged.

    1. The reference to the Claimant having a cold, blue hand is repeated in the Claimant’s witness statement dated 22 May 2013 where she recorded that she “had a cold, blue hand which was very painful to touch” and her arm “was visibly blue and this extended half way up her [arm]”. It also appeared in her most recent witness statement dated 3 February 2017 which contains the following material paragraphs:
“7 Nothing untoward occurred during the next two months and my symptoms remained very much the same.[1] However, on 3 October 2011 I noticed that I had a cold blue right hand which was very painful. I am unsure as to how long my hand had been like this for the pain was radiating from my wrist right up to my elbow. This was unlike anything I had experienced before….
10. The nurse asked me what my symptoms and concerns were. I explained to him that I had a very painful right hand and wrist. I found it difficult to move. I was holding it stiffly as it hurt when I moved it. My hand was visibly blue and this discolouration extended halfway up my arm. I continued to rest my hand on my handbag in order to help with the pain during the consultation. The nurse did not ask me to move my arm away from the bag.”
    1. Mr Basnett for his part described the Claimant’s arm as visibly blue and that that blueness extended halfway up her arm to her elbow in his first witness statement dated 22 May 2013. He also made it clear that Mr Doyle was aware that the arm was blue and Mr Doyle’s explanation for the arm being blue was that it was resting on the Claimant’s handbag. In his more recent statement dated 24 May 2018, Mr Basnett’s description of the Claimant’s hand was somewhat different. He suggested that the hand appeared to be slightly swollen and that the Claimant was complaining of pins-and-needles and he noticed that the hand would go cold, pale and then blue, and would then return to normal again.
    2. So far as the consultation itself was concerned, Mr Basnett recorded his recollection as follows:
“19. Claire and I sat down together. I sat to her right. There was no table between us and Adrian Doyle who sat on a stool opposite us. I did most of the talking in the consultation. This was quite normal as Claire was quite shy. I explained that Claire had been suffering from pins and needles and numbness in her hand. She was also getting quite clumsy and had dropped quite a few things. I also explained that her hand kept changing colour going from white to blue and back to normal again. It was also cold. Adrian Doyle asked Claire to show him her hand. I remember her showing him her hand and turning it over. He then compared her poorly hand to her good hand. He said he thought it was cooler than her other hand. He never looked at her arm or asked her to roll her sleeve up.
20. Adrian Doyle said he didn’t think it was very serious and that he would go out of the room to get a splint for it. I didn’t know quite why he was getting a splint. Whilst he was out of the room I said to Claire that I wasn’t happy with his diagnosis. She wasn’t happy with it either. When he came back into the room I asked him to look at Claire’s hand again, because I was concerned that he hadn’t taken into account the symptoms I had previously described, including pins-and-needles, the clumsiness, the numbness, and the changing colour and temperature. Adrian Doyle just said no, that he didn’t need to because all Claire had was tendonitis. I was very surprised that he hadn’t checked her blood pressure or pulse in either arm and I am angered by this, that he didn’t, because my training said to me that this was important. I believe that this would have made it clear that there was something wrong with her circulation in the one arm.
    1. Later in his statement he recorded the following:
“23 I /remember very clearly that Claire’s hand was showing signs of discolouration. The colour that it went to was a pale white and then to blueish grey colour. It was almost like the blue of a bruise. I remember that it was intermittent whilst we were there but I remember telling Adrian Doyle this. I remembered the discolouration being in her fingers then moving into her hand and then it would disappear again. Claire had been very anxious during the wait to see Adrian Doyle. During this time I comforted her by holding her hand. I know that quite often it was cold. Again, this is something I told Adrian Doyle.
    1. In his oral evidence, Mr Basnett accepted that there never was a time in the Centre on the 3 October when the Claimant’s hand was blue and that therefore those parts of his witness evidence and indeed the witness statements of the Claimant that suggested to the contrary were quite simply wrong. He insisted however that the Claimant’s fingertips, not fingers, did change colour turning blue and then going to off-white and that these changes happened from minute to minute. He also said that part of the Claimant’s palm was off-white in colour and her fingertips were cold to the touch. He accepted that at the time of the consultation there was no discolouration to the fingertips but he maintained that he described the changes in the colour of the Claimant’s fingertips to Mr Doyle but that Mr Doyle rebuffed that and asked the Claimant about her computer usage. He was unable to proffer any explanation for the earlier descriptions.
      1. Mr Doyle for his part confirmed that he had no recollection of the Claimant’s attendances on 3 October and was therefore reliant on his note which he said he would have typed up after the consultation, as was his practice. He estimated that consultations generally last around 10 to 15 minutes although there was no set time limit and he readily accepted that history taking was particularly important as there was no facility within the Centre to call up a patient’s notes. His usual practice was to ask patients how he could help. He was adamant that had he been told that the Claimant’s fingers were cold and changing colour intermittently that would have been significant and would have been noted down. He also explained that if a patient was not happy with his approach he would have arranged for the patient to be seen by another nurse practitioner and again would have noted the fact down.
    2. So far as Mr Basnett’s letter of complaint was concerned and the Defendant’s response, his evidence was that he was shown the letter of complaint and was asked only two questions in respect of that letter. Those questions were, did he remember the lady in question and did he see anyone with a cold, blue arm. His answer to both question was no and that was the extent of his involvement in any investigation of the complaint. He also made it clear that at no stage had he apologised for his examination. On the contrary he had received an apology from the Defendant for the way in which they had responded to the complaint.
Discussion and conclusions
    1. Whilst not shrinking from the obvious difficulties which the significant changes in Mr Basnett’s account caused to the Claimant’s case, it was submitted on behalf of the Claimant that Mr Basnett gave his evidence over a lengthy period of time and that he had more difficulty remembering details of the key events than he himself realised and, at least initially, was prepared to admit and indeed difficulty in articulating with precision exactly what the Claimant’s symptoms were on 3 October and that the court should make reasonable allowances for these factors. Mr Basnett was not the first and would not be the last witness to have embellished his account.
    2. Further, it was said that there was a certain symmetry about his starting position (as exemplified by the letter of complaint and its reference to fingers being blue and cold) and his oral evidence to the court that the Claimant’s fingertips were blue (albeit that they changed colour intermittently) and were cold to touch at least when allowances were made for his explanation that by fingers Mr Basnett meant fingertips.
    3. Some reliance was also placed on a retrospective note in the Claimant’s hospital records at the Hospital which was in these terms: –
Went to A/E – White painful hand”
which it was said presented some form of ischaemic process rather than tendonitis.
    1. Not surprisingly, leading Counsel for the Defendant submitted that Mr Basnett’s retraction of what he had asserted all along ought to be an end to the claim since his evidence was inconsistent, not reliable and ought therefore to be rejected. Equally, it was submitted that no reliance could be placed on the witness statement evidence of the Claimant which was fundamentally undermined by Mr. Basnett’s retraction.
    2. To my mind there is considerable force in the submissions made on the Defendant’s behalf. It is to say the least most unfortunate that Mr. Doyle’s professionalism has been impugned on the basis of a factual account that was never tenable and, as leading counsel for the Defendant put it, tellingly and eloquently, that of the experts, only Professor Bell had the intellectual rigour and independence of mind to identify and say what all the experts must have realised had they thought about it namely that the Claimant’s right hand could not have been cold and blue on 3 October and still be intact on 4 October. Equally, however, those who conducted the investigation into Mr. Basnett’s complaint bear a degree of responsibility since they too should have come to the same conclusion.
    3. In my judgment, it is plain that Mr Doyle is and was a highly-qualified, dedicated and conscientious nurse with considerable experience in the vascular field having spent his first two years in a surgical vascular ward dealing with patients with a range of vascular orders including ischaemic limbs and, later working in various surgical environments. He provided cogent evidence as to his usual practice and what his use of the phrase “no peripheral cyanosis” meant, that is to say no discolouration or blueness to the skin or any evidence that there was a lack of oxygen to the limb due to reduced circulation. I found Mr. Doyle to be a wholly honest and convincing witness doing his best to assist the court and I have no hesitation in accepting the substance of his evidence. He, somewhat modestly, I considered, characterised his history taking as being adequate, in which he was supported by Ms. Knott. I agree with that analysis notwithstanding the criticism of Ms. Schuppler and indeed Dr. Baldwin who, somewhat unfairly I considered, was critical that more information was not elicited. In my judgment, Mr. Doyle elicited such information as there was to be elicited.
      1. With his background it is in my judgment inherently unlikely that Mr Doyle did not ask appropriate general questions which he said was his regular practice and were intended to find out about the onset of the pain, the type of pain, the severity of the pain, the existence of any aggravating factors and the like, as well as questions which would have provided the Claimant as well as Mr Basnett with the opportunity to explain, if it had been the case, that the Claimant’s fingers were intermittently changing colour and going cold. Indeed, it is, if anything, even more likely that such questions would have been asked since Mr Doyle was accompanied by a student nurse who was there to learn.
    4. Mr Doyle denied in dignified terms that he behaved otherwise than entirely professionally during the consultation and in particular did not in any way flirt with the student nurse. Nor did she flirt with him. That accusation levelled by Mr Basnett was a further clear example of embellishment which did Mr Basnett no credit whatsoever.
    5. In my judgment, it is highly improbable that Mr Doyle would have been given verbal information indicating the existence of a vascular problem and not only did he not record it but on the contrary he recorded “no peripheral cyanosis” and, notwithstanding that he would be well aware of the seriousness of such symptoms, he did not refer the Claimant to a doctor and instead put forward a diagnosis of tendonitis.
    6. It is equally implausible in my judgment that the Claimant’s fingertips and or part the palm of the hand were changing colour intermittently on the 3 October so as to be visible to the Claimant and to Mr Basnett and yet neither of them said anything about the changes of colour and or temperature to Mr Doyle, particularly given Mr Basnett’s evidence that he had undergone first aid training whilst in the army, knew what ischaemic meant and knew that a blue coloured limb was indicative of an emergency. Given the extent of Mr Basnett’s knowledge, had the Claimant’s fingertips been turning intermittently blue, it is inconceivable that he would not have mentioned that fact, first of all to the receptionist, and then to Mr Doyle and equally inconceivable that they would not have recorded what was said and treated the Claimant’s presentation as an emergency requiring immediate attention.
    7. Equally, as it seems to me, the fact that Mr Basnett’s description of the condition of the Claimant’s fingers/hand has been so extreme, inconsistent and contradictory, strongly suggests that he is retrospectively describing something which just wasn’t present on the 3 October, whether as a result of the stress and upset of, in effect, losing the woman he loved, at least as he had previously known her, or because of the personal difficulties to which he alluded in the course of his evidence. If there really had been vascular changes taking place on 3 October which led to the Claimant and Mr Basnett attending the Centre, there would have been a consistent and reliable account, which there plainly was not.
    8. What of the retrospective note? To my mind it is not probative of the Claimant’s hand being white on 3 October. Professor Bell’s evidence, which I accept, is that the whole hand simply could not have been white. For that to have happened the whole of the Claimant’s blood supply would have to have been blocked off at or above the elbow and such a blockage wouldn’t have disappeared of its own volition. Moreover, it has to be remembered that the evidence is that the note apparently refers to a conversation which took place (according to Mr Basnett) in German and was recorded by someone who was not a party to the conversation and didn’t speak the language in which the conversation was conducted and there is no real evidence as to when the reported conversation took place.
    9. Whilst it is tempting, because of the temporal link between the presentation at the Centre on 3 October and the occurrence of the stroke on the 4 October to conclude that there must be such a link there is no medical reason why the stroke which took place on 4 October could not have been one event with no prodromal symptoms. That is more probable than an embolic process commencing the day before in the absence of any report of any circulatory and/or vascular symptoms in any part of the Claimant’s right upper limb.
    10. Whatever the cause of the pain that took the Claimant to see Mr Doyle at the Centre on 3 October, Mr Doyle was not given any information that should reasonably have caused him to suspect a vascular or circulatory problem which needed to be referred to a doctor and the standard of the history taking undertaken by Mr Doyle was reasonable.
Disposal
  1. It follows that there is no breach of duty and there is no need for me to go on to consider issues as to causation. The claim therefore fails.”