WITNESS EVIDENCE, RECOLLECTION,RECONSTRUCTION AND CLINICAL NEGLIGENCE
There were eighteen (factual and expert) witnesses in the trial in Dr Sido John -v- Central Manchester and Manchester Children’s Hospitals NHS Foundation Trust  EWHC 407 (QB). However, ultimately, the case on liability rested rested on which lay witness the judge accepted as accurate. It is one of a tranche of recent cases that highlight the importance of lay evidence in clinical negligence matters.
The claimant (incidentally a doctor) was injured in a fall. He was taken to hospital. He alleged negligence in that the hospital delayed in obtaining a CT scan which, in turn, led to a delay in treatment.
THE DISPUTED EVIDENCE
|”… there is an important factual dispute as to whether Mr Stuart saw Dr John soon after he came on duty at about 9.30 am on 23 December 2007 and, if so, what this meeting entailed. Mr Stuart was the A&E Consultant on call at the MRI on 23 December 2007. He gave evidence that his usual practice, when on call, would be to arrive at the MRI at about 9.30 am and that, on arrival, he would review the records of the patients who had “been through” A&E the previous night, before then examining and assessing all those patients who were still present. Mr Stuart and Dr John knew each other, Dr John having worked as a Senior House Officer in A&E at North Manchester General Hospital in 2001/2002 when Mr Stuart was one of the A&E Consultants at that hospital. Mr Stuart stated in his witness statement as follows:
“I recall that when I spoke to Sido, he recognised my voice and sat up and he began to talk to me. I spent about 10-15 minutes with him, examining his cranial nerves and reviewing the available A&E card and observations. I recall the scene very clearly. He and I chatted about old times at North Manchester General Hospital. For example, I recall having a conversation with him about my ex-wife as he had met her a few times when we had worked together. Throughout the time that we chatted, he was lucid and compliant. He was alert, orientated and his eyes were open. My assessment was that his GCS was 15/15.”
“Indeed, were it not for the fact that the Defendant has been unable to locate certain of Dr John’s patient records, there might well have been more common ground still since the absence of these records has necessarily had an impact on witnesses’ ability to recall events which by the time of trial had taken place over eight years earlier. An important aspect which is very much in dispute and in relation to which I shall have to make findings is whether Mr Stuart examined Dr John in the way in which he stated he did in the morning of Sunday 23 December 2007, and specifically whether, if he did so, when the examination happened. This is a matter which I shall address later when dealing with the question of breach of duty since it is more convenient to do this after first relating the essentially uncontroversial narrative.”
ASSESSMENT OF THE EVIDENCE
Dealing with the first allegation of negligence, Mr Allen QC and Mr Kennedy were agreed that, as Mr Kennedy put it in his Written Closing Submissions, much turns on my conclusion as to whether soon after arriving at the MRI in the morning of 23 December 2007 Mr Stuart had the conversation with Dr John which he says he did and whether his recollection of that conversation is correct. If I were to accept Mr Stuart’s evidence, including importantly what he had to say about the timing of his going to see Dr John, then, in my judgment, the allegation of negligence would be difficult to make out. Mr Allen QC submitted that, even if Mr Stuart’s evidence were accepted in its entirety (including as to timing), then still there was negligence because an urgent CT brain scan ought to have been ordered by 9.00 am, which would have meant, based on the fact that the CT brain scan subsequently ordered by Professor Body was performed within about 40 minutes, that it would have been performed by about 9.45 am. Mr Allen QC submitted that, in view of this, even if Mr Stuart did see Dr John soon after arriving at the MRI (say, at 9.45 am or so), there was, in any event, negligence because by that stage Dr John should already have been scanned. Mr Allen QC highlighted in this context how Mr Heyworth, the Defendant’s emergency medicine expert, accepted that an urgent CT brain scan should have been ordered in Dr John’s case by 9.00 am given that his condition had been stabilised by that stage. Although Mr Kennedy, in his Written Closing Submissions, suggested by reference to a passage in Dr Fletcher’s first report that he accepted that it would not be unreasonable to have waited until 10.00 am, on analysis, what Dr Fletcher was saying in the relevant paragraph (paragraph 4.1.15) is consistent with what he stated earlier in the paragraph and with what, as Mr Heyworth accepted in cross-examination, Dr Fletcher and Mr Heyworth had agreed, which was that, unless Dr John had a GCS of 15/15 at 9.00 am, then a CT brain scan should at that stage have been ordered. (In fact, Dr Fletcher and Mr Heyworth both considered that it would have been reasonable in Dr John’s case to have ordered a CT brain scan as early as 8.00 am in view of the fact that Dr John’s vital signs had stabilised sufficiently by that time). In short, Mr Allen QC’s submission was that Mr Stuart’s review did not remedy the Defendant’s earlier breach of duty. This is not, however, a submission which I can accept. I consider that if Mr Stuart did go and see Dr John when he stated in evidence that he did, which was soon after arriving at the MRI at 9.30 am, and if he did reasonably conclude that Dr John had a GCS of 15/15, then, the case in negligence must fail. This is because, on this scenario, even if a CT brain scan had been ordered at 9.00 am, it would have been legitimate to cancel it before it was carried out. The fact that, in the event, there was no cancellation until 11.35 am seems to me to be immaterial for these purposes. Furthermore, since Dr John was, on Mr Stuart’s account, on ‘resus’ rather than in the radiology department when he saw him, it must be the case that Dr John had by that stage yet to be scanned, and I would be reluctant to conclude that there was negligence on the part of the Defendant based on the fact that the CT brain scan had not been performed in the relevant timescale, namely within 45 to 60 minutes of the order having been made at 9.00 am.
In my judgment, therefore, this aspect of the case depends on whether Mr Stuart’s evidence concerning his going to see Dr John can be accepted. If he did go and see Dr John and if he did so when he stated in evidence that he did, at some point after 9.45 am but before 10.00 am, then, the allegation of negligence cannot succeed. If he did not go and see Dr John or, if he did, he did not assess him as he says he did or, if he did, he acted negligently or, if he went to see Dr John later in the morning rather than soon after coming into the MRI, then, the allegation of negligence will succeed because Dr Fletcher and Mr Heyworth were agreed that it was only if Dr John had a GCS of 15/15 that it would have been appropriate not to order a CT brain scan at 9.00 am (the point made above) or to cancel or, as Mr Heyworth put it both in his first report and again in cross-examination, “defer” an order which had already been placed. As to this latter point, I should mention that Mr Allen QC observed in his Written Closing Submissions that, when giving evidence, Mr Heyworth sought to stress the fact that Mr Stuart went to see Dr John. That is the case. Mr Heyworth did sometimes appear to find it difficult to put Mr Stuart’s account out of his mind and this did lead to a certain reluctance to engage with certain of Mr Allen QC’s questions. However, I reject the suggestion made by Mr Allen QC that Mr Heyworth showed an over-willingness to accept Mr Stuart’s evidence when this is properly a matter for me as the judge.
I turn, therefore, to consider the evidence which Mr Stuart gave concerning his meeting with Dr John. I have previously outlined this but, to repeat, Mr Stuart’s evidence was that he went to see Dr John soon after coming into the MRI at about 9.30 am, and so probably at about 9.45 am and anyway not later than 10.00 am, and that when he spoke Dr John recognised his voice and sat up, beginning to talk to him. He stated that he spent about 10-15 minutes with Dr John, examining his cranial nerves and reviewing the available A&E card and observations. He stated that he recalled the scene very clearly, specifically that the two of them spoke about their time working at North Manchester General Hospital. Throughout, Mr Stuart insisted, Dr John was lucid and compliant; he was also alert and orientated, with his eyes open. His assessment was that Dr John’s GCS was 15/15. On this basis, Mr Stuart gave instructions that Dr John no longer needed a CT brain scan and instead required to be kept under observation in CLDU.
Ultimately there was no issue between Mr Allen QC and Mr Kennedy that Mr Stuart probably did go and see Dr John. Unsurprisingly, in the circumstances, Dr John himself had no recollection of seeing Mr Stuart. However, Mr Allen QC acknowledged that Mr Stuart probably did review Dr John, given not only that this was what Mr Stuart stated he did but also because Nurse Harkins’ ‘Incident Report’ records that she was told by somebody in ‘resus’ that Mr Stuart “did not want a scan“. Therefore, even if Professor Body was not also told that Mr Stuart had assessed Dr John as having a GCS of 15/15 when he spoke to somebody in ‘resus’, there is nonetheless evidence which corroborates Mr Stuart’s version of events. There were, however, real disputes between Mr Allen QC and Mr Kennedy as to, first, when Mr Stuart saw Dr John and, secondly, what happened when he did so. Mr Kennedy invited me to reach the view that Mr Stuart’s account should be accepted in all respects. He submitted, in particular, that Mr Stuart had no reason to make things up. He submitted also that Mr Stuart had every reason to recall the conversation given that he knew Dr John and given the coincidence that Dr John should have come into A&E, Mr Stuart’s department.
Mr Allen QC submitted, on the other hand, that none of the surrounding documentation is consistent with Mr Stuart having found Dr John’s GCS to be 15/15, whether before 10.00 am or at any other time. He highlighted the fact that when Nurse Harkins received the telephone call from a nurse in ‘resus’ to tell her that Dr John was going to be coming to CLDU she was told that Dr John had a GCS of 12-13/15 and no mention was made of the GCS having dropped from 15/15 earlier in the morning. I agree with Mr Allen QC also that, if Dr John’s GCS had deteriorated in this way, then it is difficult to conceive that the ‘resus’ nurse would have regarded it as appropriate to be arranging a transfer to CLDU as opposed to arranging an immediate CT brain scan. I consider that there is also force in Mr Allen QC’s additional point that, since Dr Fletcher and Mr Heyworth were agreed in their joint statement that “a lucid interval in a young brain injured patient with an acute subdural haematoma, such as the claimant, would be most unusual” and that the “apparent” improvement from 12/15 to 15/15 “is in their experience, inconsistent with an acute subdural haematoma”, it is inherently improbable that Mr Stuart could have assessed Dr John as having a GCS of 15/15. I take account also of the fact that Mr Stuart described, when being cross-examined, seeing an abrasion or sign of trauma on Dr John’s head despite making no mention of this in his witness statement. I agree with Mr Allen QC that it is somewhat unlikely that Mr Stuart should recall this for the first time in the witness box and not when he made his witness statement. It is quite obvious that this was a matter which Mr Stuart would have mentioned in his witness statement had he actually seen the abrasion or sign of trauma.
In the event, however, I need not reach a final view as to what happened when Mr Stuart saw Dr John. This is because it is only if Mr Stuart saw Dr John when he claimed that he saw him, namely before 10.00 am and probably at about 9.45 am, that Mr Stuart’s assessment matters. If Mr Stuart saw Dr John later than 9.45 am or 10.00 am, then Dr Fletcher and Mr Heyworth were agreed that Dr John should already have undergone a CT brain scan by the time that Mr Stuart saw Dr John at some point thereafter. Mr Kennedy’s central submission in relation to this was that I should accept that Mr Stuart’s recollection that he went to see Dr John soon after arriving at the MRI, and so at some point between 9.30 am and 10.00 am, was accurate since there is no reason why it should be otherwise. Mr Kennedy submitted, furthermore, that Mr Stuart cannot have assessed Dr John as having a GCS of 15/15 as late as Mr Allen QC suggested was the case, namely in the lead-up to the cancellation of the CT brain scan at 11.35 am, since only about half an hour later Nurse Harkins was being told that Dr John had a GCS of 12-13/15. Mr Kennedy suggested that this demonstrates that Mr Stuart must have assessed Dr John earlier in the morning, at the time that he stated he did. I have concluded, notwithstanding these submissions, that Mr Stuart’s assessment of Dr John probably took place later than the 9.30 am to 10.00 am window to which Mr Stuart referred, and that it is more likely to have taken place nearer to 11.35 am when the CT brain scan was cancelled. By this stage, on any view, the CT brain scan ought to have been performed and the fact that it was not was clearly the result of negligence. I can state my reasons for reaching this conclusion relatively shortly.
First, Mr Stuart’s evidence as to when he went to see Dr John was evidence given concerning something which happened over 8 years ago. Whilst I acknowledge Mr Kennedy’s submission that Mr Stuart has good reason to recall seeing Dr John given that he was somebody who knew Dr John from the past, it does not follow that Mr Stuart should be treated as remembering when exactly he carried out his assessment of Dr John. Mr Stuart’s evidence concerning the timing of the assessment entailed reconstruction rather than independent recollection. It was that he would have gone to see Dr John “reasonably early”, as he put it in his witness statement, during his review of patients after his arrival at about 9.30 am. In circumstances where there is no record of Mr Stuart’s assessment, specifically as to when it happened, it is inevitable that Mr Stuart might be mistaken in his recollection and I consider that he was. Mr Stuart’s evidence also depends on his arriving at the MRI at about 9.30 am rather than later, yet again Mr Stuart was, unsurprisingly in the circumstances given the length of time which has passed, not able to say categorically that this was the time when he arrived on 23 December 2007 specifically. The most that he could say was that he would generally arrive at about this time: as he put it in his witness statement, he “tended to come into the hospital about 9.30“. However, this was just a couple of days before Christmas and it would not, therefore, be wholly surprising if Mr Stuart started a little later than usual. If so, this would mean that he would have gone to see Dr John later than the time he suggested.
Secondly, Mr Stuart explained that his usual practice entailed him spending about three hours on A&E after coming in at about 9.30 am, and then another 3 hours (and often much more) when he returned later in the day. The morning session would end with going to CLDU, as he put it in his witness statement, “to complete the ward round”. Mr Stuart confirmed in cross-examination, however, that he did not see Dr John when he went to CLDU on 23 December 2007. This is despite the fact that, if Mr Stuart is right and he came into A&E at about 9.30 am, then, he would very likely have encountered Dr John since Dr John was in CLDU from shortly after noon until some time after 1.00 pm when, having undergone a CT brain scan, Professor Body arranged for him to be re-admitted to A&E.The fact that Mr Stuart did not see Dr John in CLDU serves to confirm that he cannot have star ted work on this particular Sunday as early as he normally did, so making it all the more likely that Dr John was not assessed by him in the timescale in which, working on the basis of his normal practice rather than actual recollection, Mr Stuart suggested in evidence he was assessed.
Thirdly and especially importantly, there is clear evidence that at 10.17 am Dr Khawja ordered a CT brain scan for Dr John. This is after the time when, according to Mr Stuart, he assessed Dr John as having a GCS of 15/15 and concluded that a CT brain scan was no longer required. I find it inconceivable that, if Mr Stuart had reached this conclusion, something which Mr Walton-Pollard stated in his evidence Mr Stuart told him when he came away from Dr John’s bed having performed his assessment, Dr Khawja would have done what he did. Mr Stuart did not review the Claimant prior to 10.17 am. If Mr Stuart really had seen Dr John before that time and if he had made notes of his assessment, as Mr Stuart was adamant he did (albeit the notes, if they ever existed, are now no longer available), it would have been obvious to Dr Khawja that he should not be ordering a CT brain scan. Mr Kennedy suggested in his submissions that the likely explanation was that A&E was busy and the message that a CT brain scan was, in Mr Stuart’s view, no longer required did not get through to Dr Khawja. I am not prepared, however, to make that assumption in circumstances where Dr Khawja was not called as a witness in these proceedings. Dr Khawja remains employed by the Defendant and, even if his recollection of relevant events was not particularly good, it should nonetheless have been possible for him to give evidence, if necessary of only a general kind, along the lines suggested by Mr Kennedy. I bear in mind also that neither Mr Stuart nor Mr Walton-Pollard put forward any explanation as to why Dr Khawja came to order the CT brain scan after Mr Stuart had given instructions that it was no longer required.
Fourthly, the assessment taking place later than suggested by Mr Stuart is more consistent with the fact that the CT brain scan was cancelled at 11.35 am. This was over two hours after Mr Stuart stated that he would have arrived in A&E and at least one hour and 35 minutes after, according to Mr Stuart, he had carried out the assessment. It is difficult to see why there should be such a level of delay. On the contrary, Mr Walton-Pollard’s evidence was that, although he could not remember contacting CLDU in Dr John’s case, it was “normal procedure” in a case where a patient was going to be transferred to CLDU that he would in short order check whether a bed was available in CLDU and that this would be followed by a nurse in ‘resus’ carrying out a handover on the telephone. Mr Walton-Pollard stated that very shortly after his conversation with Mr Stuart he would have contacted CLDU to ascertain if a bed was available. Again this strongly suggests that the assessment must have been nearer 11.35 am since Nurse Harkins confirmed, both in the ‘Incident Report’ and in cross-examination, that she received the handover telephone call from one of the ‘resus’ nurses at about noon. I agree with Mr Allen QC that this firmly points towards the discussion between Mr Stuart and Mr Walton-Pollard, and so Mr Stuart’s assessment in relation to Dr John, taking place much closer to noon, in all probability shortly before 11.35 am when the CT brain scan was cancelled by somebody whose identity is not known but who might very well have been Dr Khawja, than to 9.45 am or 10.00 am. Indeed, it is to be noted that, when he was cross-examined, Mr Walton-Pollard acknowledged that he did not actually recall the time when he saw Mr Stuart go in to see Dr John and then coming out and telling him that a CT brain scan was not required. In his witness statement, Mr Walton-Pollard had stated that Mr Stuart “came on duty that morning somewhere around 9.30 am”, but based on his answer given in cross-examination he clearly could not, in fact, recall the relevant timing.
Lastly, had Mr Stuart assessed Dr John between 9.30 am and 10.00 am as having a GCS of 15/15, this would mean that when arrangements were being made to transfer Dr John to CLDU notwithstanding that his GCS had dropped from 15/15 to 12-13/15. Such a drop, as Mr Stuart readily acknowledged during the course of cross-examination, would have required that a CT brain scan was undertaken immediately. It would also, obviously, have meant that Dr John was not going to be sent to CLDU. In view of this, it is most unlikely that Mr Stuart could have seen Dr John in the timescale which he identified. It is far more likely that the transfer was being effected in the context of Mr Stuart having only very recently made an assessment that Dr John had a GCS of 15/15 and having concluded, accordingly, that no CT brain scan was required.
I appreciate that this leaves the oddity identified by Mr Kennedy, namely that only half an hour or so later Dr John was being described during the course of the transfer telephone call as having a GCS of 12-13/15 and then, after arrival in CLDU, he was assessed as having a GCS which was not the 15/15 assessed by Mr Stuart. One explanation for this is that Mr Stuart was wrong to have arrived at the 15/15 assessment which he did, something which would be consistent with an assessment which, Mr Allen QC suggested, was deficient in a number of other respects. These included the failure to identify an abrasion/sign of trauma on Dr John’s head to which I have previously referred and which, when the point was put to Mr Stuart by Mr Allen QC, caused Mr Stuart to suggest that this was something that he did see. I prefer, however, not to express a view as to the adequacy of Mr Stuart’s assessment, in particular not to decide whether Mr Stuart was negligent in assessing Dr John as having a GCS of 15/15. It seems to me that it is sufficient that I indicate that, having considered matters in the round, they lead me to conclude, for the reasons which I have set out above, that the assessment carried out by Mr Stuart took place somewhat later than he suggested, probably at about 11.30 am. It follows from this that I conclude that a CT brain scan should have been performed on Dr John earlier than was the case, specifically by not later than about 10.00 am, and that this was the result of negligence on the part of the Defendant. In short, Dr John’s primary allegation of negligence has been made out.
Allegation of delay in transfer to the Hope
As to Dr John’s case that there was a negligent delay in arranging a transfer to the Hope, I am clear that this case, too, must succeed. It will be recalled that the relevant period of delay, after Dr John had been stabilised following his seizure earlier in the afternoon, was in the order of about an hour, Mr Allen QC and Mr Kennedy agreeing that Dr John would have been ready for transfer by about 4.35 pm when, as Mr Kennedy pointed out, Mr Stuart prescribed Dr John with Atracuriam, so indicating that intubation, ventilation and stabilisation had been achieved and Dr John was ready to be transferred. The delay, therefore, was about an hour since the second ambulance was not requested until 5.33 pm. The fact that the ambulance did not then arrive until 6.39 pm is clearly not something for which the Defendant can be blamed. That was a delay which is the responsibility of the ambulance service, not the Defendant, and Mr Allen QC did not suggest otherwise. It is instructive, however, that there was increasing anxiety on the part of Nurse Jones, who made two telephone calls to the ambulance service in order to chase, and on the part of Mr Stuart, who made contact with Professor Mackway-Jones to try to expedite the transfer. It may well be the case that part of this anxiety arose from the fact that it was recognised that there had been an appreciable delay in ordering the ambulance. Whether that is right or not, I am satisfied that the ambulance ought to have been called earlier, soon after 4.30 pm, and that the failure to do this was the result of negligence on the Defendant’s part. Indeed, as I have observed, whilst not conceding liability, Mr Kennedy essentially recognised that this was the case since he did not seek to put forward any excuse or reason for the delay which occurred after Dr John was ready to be transferred to the Hope after having his earlier seizure.
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.
- Witness evidence, medical notes and credibility.
- 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.
- Witnesses, trials and accuracy of recollection: another example
- Witness trials and accuracy of recollection (II)