LAY EVIDENCE AND EXPERT EVIDENCE IN CLINICAL NEGLIGENCE: MORE IS NOT ALWAYS BETTER

In Wake -v- Johnson [2015] EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) conducted a critical analysis of the lay evidence and expert evidence when dismissing a clinical negligence claim against a GP.  There are important lessons, particularly in relation to witness evidence in clinical negligence cases.

THE CASE

The case centred on what occurred in a consultation by a GP, it was alleged that the GP had been negligent in not referring the claimant to hospital. The trial, which was on liability alone, took 9 days. It was agreed that, if the parents’ account of what had occurred at the consultation was accepted the GP was negligent, with issues relating to causation to be determined later.

KEY POINTS

This case underlines the importance of witness evidence in clinical negligence cases.

• Evidence must be consistent.
• “Corroborative” evidence will be looked on with some scepticism if it merely repeats what others say.
• There are dangers with witnesses looking back at matters with the benefit of hindsight.

CONSIDERATION OF THE WITNESS STATEMENTS

1. The general point is made in respect of the evidence of Ethan’s parents as to the consultation, that their recollection, unlike that of Dr Johnson, is not supported by contemporaneous notes. However, Ethan’s illness and the events surrounding it were momentous events in the lives of his parents and they would have good reason for those events to be etched in their minds.
2. It is suggested that their evidence may be affected by their knowledge of the outcome in Ethan’s case and that the events surrounding Ethan’s development of meningitis will have been much discussed before and after the commencement of litigation.
3. What is certain on the evidence before me is the fact that the accounts given by Mr Wake and Ms Hastie have not been consistent. Mr Wake’s original letter of complaint dated 31 March 2010 to GatDoc noted that he and Ethan’s mother had explained their concerns to Dr Johnson about Ethan as follows:

‘Ethan had a high temperature, was suffering from severe headaches (progressively worse over five days), had a fever, some aches and pains around the body, was vomiting and not eating much, no energy and a lot more sleepy than usual‘.

1. Mr Wake’s further letter of 16 April 2010 in reply to a letter from GatDoc sought to correct aspects of GatDoc’s letter and repeated the above list of symptoms, but did not add to the list, nor did his letter of 15 April 2010, replying to a letter from Gateshead Primary Care Trust.
2. Elements have been added to the account of Ethan’s state when seen by Dr Johnson and what Dr Johnson was told; paleness, vomiting bile, unresponsiveness, not eating anything at all since a small amount of Weetabix on the morning of 31 December 2009, vomiting even sips of water, screaming at the examination. Some but not all of these further features were referred to in the letter before action dated 30 May 2012.
3. The original draft statements appear to have been produced in August 2011 at a time when claims against Drs McNulty and Cliff were contemplated, as I was told by Mr Spencer QC on the second day of trial, although Ms Hastie said in evidence that she know nothing of this. The draft statements contain more dramatic descriptions of how Ethan appeared at the consultations with Drs McNulty and Cliff on 2 and 18 December 2009. They give an account of a single continuing and worsening illness from early December 2009 until 2 January 2010, and in those statements, there was no description of Ethan struggling, crying, or screaming during Dr Johnson’s examination. It was in the served witness statements that all these features appeared together. Initially, Ms Hastie said in her oral evidence that she had told Dr Johnson about the unusual screaming in the consultation on 1 January 2010 but when it was pointed out to her that that this had not been mentioned in her witness statement, she told me that she could have been mistaken about the screaming and later she said to me that she could not recall telling Dr Johnson about screaming.
4. Neither Mr Wake nor Ms Hastie had any explanation why key passages are omitted from earlier written accounts. Clearly there were considerable difficulties in making out a claim against Drs Cliff and McNulty on the basis of the aetiology of pneumococcal meningitis, as the earlier report of Dr Conway noted, as it was unlikely that a disease, generally characterised by a rapid onset, had, in Ethan’s case, been causing symptoms since early December 2009.
5. It is important to note that the draft statements of Mr Wake and Ms Hastie were not signed. However, I cannot accept Mr Wake and Ms Hastie’s assertion that they had not seen those documents before the trial and that they were produced by the previous solicitor’s consideration of the medical records and Mr Wake’s complaints correspondence, supplemented by a short consultation with them. A consideration of those draft statements, and concessions made in the course of cross-examination, demonstrates that those statements must have been prepared on the basis of very detailed instructions taken at lengthy meeting or meetings that were presumably used for the purposes of settling the Particulars of Claim. The history of the varying accounts given by Ethan’s parents of the consultation with Dr Johnson casts doubt on the accuracy of their final account.

“CORROBORATIVE EVIDENCE”

Various families members and friends gave supportive evidence

1. However, there is considerable similarity between the terms of much of the evidence of Ethan’s parents and the supporting family and friends.
2. Mr McCullough QC has prepared a comparison in tabular form that sets out these similarities and I reproduce that in this judgment.

1. A difficulty with much of the corroborative evidence is that the substance of those similarities relate to symptoms not recorded (e.g. bile) or not recorded in the same terms (eating) in the contemporaneous medical records. Mrs Brooks mentioned bile for the first time in her oral evidence. She had been the only one of the seven witnesses not to mention bile in their witness statements. There is no mention in any contemporaneous record of Ethan vomiting bile nor was it mentioned by Mr Wake in his original or reiterated letters of complaints, to which reference has already been made.
2. A further problem with Mrs Brooks’ evidence emerged on disclosure of Ms Hastie’s draft statements, after Mrs Brooks gave evidence. On Mrs Brooks’ account she had not seen Ethan between Christmas Day and New Year’s Eve. She said in her written statement that Ethan had “suddenly deteriorated since I last saw him on Christmas Day.” On that evidence it was not clear as to how Mrs Brooks knew the deterioration was sudden. However, in her first draft statement Ms Hastie describes taking him to Mrs Brooks’ house on 29 December 2009 at 17:00, and collecting him at about 20:00, with an associated concerning description of his state at that time, subsequently omitted from the later versions of her statement. Mrs Brooks and Mrs Hastie both said in their statements that what Ms Hastie and Mr Wake said was correct although in their evidence to me they said that they had not had sight of their witness statements when they signed their own.
3. In my judgment the reliability of the evidence of the corroborative witnesses is highly questionable; the circumstances strongly suggest to me that there has been an unsatisfactory degree of liaison between these witnesses.

THE DOCTOR’S EVIDENCE

What is interesting here is that the doctor had no clear recollection of the consultation and did not purport to have a clear recollection but relied on his notes.  This impressed the judge. It highlights the importance of careful witness taking.  The doctor’s credibility would have been seriously undermined if he had asserted that he had a clear recollection of the consultation which “clear recollection” could be undermined in cross-examination.

1. I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate.
2. I was impressed by the evidence of Dr Johnson. I found him to be a careful and reliable witness and he came across to me as being a generally caring and responsible GP. The evidence before me was that he has an unblemished professional record. He made an appropriate concession when challenged in relation to the likelihood that he was given a history of vomiting, a history which he must have been aware of from the triage notes. He said he had a low threshold for hospital referral if he suspected that a patient was suffering from meningitis, in particular because he himself suffered from it when he was aged 21. Ethan’s parents described their recollection of Dr Johnson’s manner at the consultation as ‘empathetic‘ and ‘confident‘, and said that he ‘listened to everything we said‘.
3. I find it hard to accept that Dr Johnson would not have responded to a child in the state described by Ethan’s parents by making an immediate referral to hospital. In his oral evidence Dr Johnson said in respect of this:

‘If Ethan had come through the door looking as poorly as some of the descriptions given now, he would have had a 5 minute consultation whilst waiting for an ambulance.‘

THE JUDGE’S CONCLUSION

1. In the circumstances of subsequent events, it would be wholly understandable if Ethan’s parents have reformulated, albeit unconsciously, the advice that had been given to them by Dr Johnson on 1 January 2010 as well as Ethan’s state that night.

COMMENTS ON THE EXPERT EVIDENCE

The judge also considered the views of the opposing expects (which was strictly unnecessary as he accepted the defendant’s account of what occurred).

1. I must judge between these opposing views. In reaching my conclusion I bear in mind a number of facts and matters.
2. As a preliminary, I note two obvious facts that I consider it important to have in mind when considering this aspect of the case. Perforce, the experts advise without having been present at the material consultation and with the benefit of hindsight. I must recognise the potential danger of experts in those circumstances unconsciously imposing too high a standard of care upon the professional whose conduct is being judged than the law prescribes.
3. The evidence was clear that Dr Cameron’s experience in general practice at the relevant time and since is substantially greater than that of Dr Rogers. Dr Cameron is a full time GP Principal and a GP trainer. Dr Rogers, by contrast, was last a GP Principal in 1996. He has not been in full-time GP practice since 1996 and retired from clinical practice entirely in 2010, having been winding down his workload for several years preceding that.
4. I was unimpressed by the fact that Dr Rogers was ready to make new criticisms of Dr Johnson’s record-keeping for the first time in cross-examination, which did not appear in his report, or in the joint statement with Dr Cameron, or even in examination-in-chief. These were that Dr Johnson failed to record the ‘amount of drinking’ and that he failed to record the severity of the headaches. He also criticised Dr Johnson’s safety-netting advice for the first time in cross-examination. Mr McCullough QC submits to me that this approach suggests that Dr Rogers was seeking to improve the Claimant’s case rather than take an independent view or had failed to consider the case with sufficient care when advising initially. In any event he contends that those new criticisms of Dr Johnson were not realistic and do not reflect the general standard of GP practice. In support of that submission he observed that his criticisms of Dr Johnson’s record-keeping, if valid, would equally apply to the notes of Dr McNulty, Dr Cliff and Dr Graham at earlier consultations in 2009. So Dr Graham did not record history of temperature nor any measurement of respiratory rate despite recording “rapid breathing,” Dr McNulty did not record respiratory rate despite crackles in the chest and Dr Cliff did not record the history of temperature despite it being high at 39.2°C. It is inherently unlikely that all those GPs were deficient in their record-keeping and that this should be taken as an indication that Dr Rogers’ opinion does not provide a reliable indication of reasonable standards in General Practice.
5. In his oral evidence, on several occasions Dr Rogers demonstrated that he was influenced by the family’s account, even when apparently considering Dr Johnson’s actions on the basis of Dr Johnson’s account of the consultation being accepted. So, criticism of Dr Johnson not recording Ethan’s respiratory rate was influenced by the family’s account that Ethan had had difficulty breathing. Dr Rogers conceded that this criticism would fall away when it was pointed out to him that, on Dr Johnson’s account, there was no sign of raised respiratory rate when he examined Ethan; a matter clear from Dr Johnson’s witness statement.
6. Dr Rogers commented in his evidence that he had:

‘got the impression Dr Johnson would only have sent this child up if he found neck stiffness, and that is too late. I got the impression Dr Johnson would only send up to hospital if a child collapsed.‘

1. I have already given my general impression of Dr Johnson; specifically, my impression on this specific aspect of Dr Johnson’s evidence did not follow that of Dr Rogers.
2. The thrust of the case advanced on Ethan’s behalf and supported by Dr Rogers, and to a degree Dr Conway, on this aspect of the case was that in allowing Ethan home on the evening of 1 January 2010, Dr Johnson took an unjustifiable risk. Being unable to exclude a bacterial infection bacterial infection and septicaemia, he was duty bound to seek a paediatric opinion.
3. An important part of the case advanced by Dr Rogers for Ethan is the assertion that where a young child presents with what Ethan’s advisers have called the ‘triad’ of fever, vomiting and headaches, the patient must be referred for a specialist paediatric opinion notwithstanding a low risk categorisation applying the NICE Guideline.
4. It is significant that the ‘triad’ does not appear in the NICE Guidelines. Each of the elements of the ‘triad’ have been specifically considered in the development of the NICE Guideline. Extracts dealing with the evidence in relation to headache and vomiting were produced to the Court demonstrating that even in 2013 these features were not concluded to be useful discriminating features. Height of fever and duration of fever also appear there, and can be seen to be regarded as reliable indicators only in children under 6 months (height of fever – “red sign”) or where a fever has been present for 5 days or more (duration of fever – “amber sign”).
5. Dr Conway suggested that the reason for the exclusion was that the NICE Guideline only looked at individual features, not combinations of features and he asserted that it was the elements of the ‘triad’ in combination that made them significant. I find it little short of incredible that the NICE Guidelines have been drawn up on such a basis, ignoring a combination of symptoms which it is asserted by Dr Conway are a well known indicator of the risk of a patient developing meningitis.
6. Despite being given opportunities in the course of this lengthy trial to produce them, Dr Rogers or Dr Conway were not able to produce any literature to support the assertion that the ‘triad’ of symptoms was notorious as an indicator of meningitis before any signs of meningeal irritation are apparent. This was notwithstanding that they suggested that the concept of the ‘triad’ was elementary and had been recognised for decades. Dr Conway’s own textbook chapter on pneumococcal meningitis only mentioned vomiting, headache and fever as part of a much longer list of possible symptoms and signs in adults, not as a specific triad. In relation to children, there is no reference to this triad of features. I cannot accept Dr Conway’s explanation as to why the triad would not be identified in such a text book

WELL THATS CLAIMANT DOCTORS FOR YOU

Before anyone reaches an assumption that “claimant’s doctors” are invariably partisan I should record the fact that there are several recent High Court decisions where doctors instructed on behalf of defendants have been found to lack the necessary degree of impartiality.  In the interest of balance I will review those decisions in early course.

RELATED POSTS

Evidence and clinical negligence

• 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: evidence of incompetence in other cases.

OTHER 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 basics

9.Witness credibility: what factors does the court look at?