WITNESSES, TRIALS AND ACCURACY OF RECOLLECTION: ANOTHER EXAMPLE
In XYZ -v- Warrington & Halton NHS Foundation Trust  EWHC 331 (QB) Mr Justice Dove considered a trial where the outcome, as so often, depended on the accuracy of recollection.
The claimant brought an action in clinical negligence. It was alleged that inadequate steps had been taken to assess the claimant’s psychiatric condition prior to an operation. It was also alleged that the claimant’s consent had not been properly obtained. The judge found that the recollection of the Defendant’s witnesses was not perfect in every respect. However on the key issues their evidence was to be preferred.
THE JUDGE’S ASSESSMENT OF THE WITNESSES
Setting out this period covered by the evidence from the middle of 2008 up until the date of the operation provides the context for resolving the factual issues in relation to whether or not the claimant was advised fully and properly in relation to the risks of the operation and therefore able to give her consent. The first issue which I have found easy to resolve is the question of whether or not the claimant was provided with the “lumbar microdiscectomy” leaflet. I have no doubt that she was provided with that leaflet by Nurse Gerrard. Whilst Nurse Gerrard accepted that there were some errors on the documentation which she had completed, for instance she had noted a “N” rather than a “Y” for the claimant’s mental health, and she accepted that there were defects in the care which she had provided in that she should have taken a peak flow from the claimant because of the claimant suffering from asthma, these were in reality minor issues and can be accounted for without accepting that the totality of the information which was compiled by Nurse Gerrard was inaccurate or incomplete. This is particularly the case in relation to the answer which was provided in respect of post operative expectations. This is a narrative rather than a simple mechanical answer and one which has in my view been accurately completed by Nurse Gerrard in a form which makes plain that the leaflet was provided to the claimant. Whilst Nurse Gerrard accepted, candidly, that there was a possibility she may not have provided the leaflet, on the balance of probabilities I am entirely satisfied that she did. Furthermore that is reinforced by not only the careful note which she took in relation to this issue but also in relation to answers recorded in relation to the use of a catheter and the question of the claimant’s previous abuse. I am unable therefore to accept the evidence of the claimant and the claimant’s mother that she was never provided with this leaflet.
Turning to the evidence of Nurse O’Malley again I have no difficulty in accepting her evidence that, in common with all of the occasions when she would undertake the consenting procedure, that the claimant was taken through the notes on the consent form prior to her signing it. Without the benefit of hindsight the claimant may not, at the time, have appreciated the significance of the risks about which she was being advised or the process which was occurring when the form was presented to her. However I am satisfied that the claimant is mistaken when she suggests that she was simply expected to sign the form without there being any discussion of its contents.
The most significant contested element of this aspect of the case is that related to the advice on risk which was provided by Mr Shackleford. It is, of course, a serious and indefensible omission on the part of Mr Shackleford that there are no detailed notes provided of the consultation of 7th August 2009 apart from the following which is recorded in a letter from Mr Shackleford to the claimant’s GP:
“I reviewed XYZ in the clinic today. Although her MR scan doesn’t show any worsening of the situation I think she is now in a state of mind where left leg pain is a major problem and she would like to have something done. She could therefore go ahead with a left L4/5 microdisectomy, we know nothing about the disc pain at this stage.”
I also bear in mind that I have already concluded that Mr Shackleford’s evidence has been mistaken in his recollection of some of his earlier interactions with the claimant and her mother. Nevertheless there are other elements of the proceeding documentation which support the view which I have reached that Mr Shackleford’s evidence in relation to what occurred on 7th August 2009 is a reliable account. It is clear that, in particular, the interaction between the claimant’s psychiatric and psychological symptoms and her back pain and the options for treatment of it were a matter which had been the subject of earlier discussion between the claimant and her mother and Mr Shackleford and his colleagues. This is in particular evidenced from the consultations of 23rd December 2008 and 14th July 2009. It therefore appears to me overwhelmingly likely if not inevitable that Mr Shackleford is correct when he describes the contents of the consultation on 7th August 2009 as involving a discussion of the potential for the operation to be prejudiced by the claimant’s psychiatric problems since that would have been a development of what was in effect an ongoing discussion about that issue and a continuation of the advice which had been given in earlier discussions. In my view it is inconceivable that Mr Shackleford would have embarked upon relatively major spinal surgery without having explained the risks in relation to neurological damage and other complications which would arise from intervening directly in the claimant’s spine. I accept his evidence that his explanation of the risks would have included a discussion of the risks of neurological damage including paralysis and loss of bladder and bowel control and that they would have covered the risks of infection, damage to the dura and further pain and spinal problems. Whilst Mr Shackleford presented in the witness box as a person who was inclined to be impetuous, and perhaps headstrong, failure to have explained these risks would undoubtedly have been unprofessional and foolhardy and as such conduct which I am unable to accept occurred on this occasion.
I am satisfied that the claimant and her mother are therefore mistaken in their recollection that there was no discussion of these matters. I am unprepared to speculate as to how that may have happened but bear in mind that this advice was administered at a time of considerable stress and anxiety for both the claimant and her mother, and furthermore during a period where it is clear to me that they were exceedingly anxious to seek to secure some means of medical treatment to resolve the physical and psychiatric symptoms which were causing the claimant considerable difficulties. Whilst I have no doubt that, understandably, seeking a concrete resolution to the claimant’s symptoms through positive and direct medical treatment was a high priority for them at that stage I am unable to accept that the operation which occurred took place without them having received any advice at all in relation to the potential issues associated with the claimant’s psychiatric treatment at the time, or the other neurological and general medical risks arising from the procedure. I shall return to the implications of these factual conclusions when considering the question of whether or not consent was properly obtained from the claimant.
“In the light of the findings which I have set out above I am satisfied that the claimant’s consent was properly obtained for the purposes of the lumbar microdiscectomy and that the decision to undertake that surgery did not give rise to any breach of duty by Mr Shackleford whose treatment I consider reflected a reasonable body of competent medical opinion. For these reasons the claimant has failed to establish breach of duty and therefore liability.”
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.