RE-VISITING WHITEHOUSE -v- JORDAN 1: THESE APPEALS WERE NOT ABOUT CLINICAL NEGLIGENCE AT ALL: IT’S ALL ABOUT THE FACTS

August 9, 2016 · by · in Civil evidence, Clinical Negligence, Witness statements

The decisions of the Court of Appeal and House of Lords in Whitehouse -v- Jordan are often put forward as seminal cases in the law of clinical negligence.  However these appeals, in reality, were not about issues relating to clinical negligence at all.  In a series of posts I want to look at aspects of these decisions that are often overlooked.  I am looking at them now because these aspects of the case are of great relevance, to those who practice in clinical negligence, and to litigators generally.

THESE WERE NOT APPEALS ABOUT CLINICAL NEGLIGENCE

This may appear like a bold statement. However it reflects the reality of these decisions. There was no issue between the parties in relation to the relevant law and the legal principles to be applied.  The trial judge found that the clinician had pulled “too hard and too long”, the Court of Appeal held that this finding of fact was not available to him. This decision to overturn the judge’s findings of fact was upheld by the House of Lords.

THE CRUCIAL FINDINGS OF FACT BY THE TRIAL JUDGE

This was considered by Lord Denning M.R. in the judgment in the Court of appeal [1980] 1 All ER 650.

“Mrs Whitehouse in her evidence blamed Mr Jordan for everything. She said that it was he who examined her on three occasions beforehand when it was really Dr Hall. The judge disbelieved her. He said: ‘That Mrs Whitehouse believes what she says I have no doubt, but that she is wrong I am sure.’

The crucial part of her evidence was about the pulling. She said: ‘It was like a deadened electric shock that lifted me up off the table, up off the bed.’ She told the two retired professors, it is in their joint report, that she suffered shocks and was lifted from the bed. They interpreted this as meaning that she was pulled down off the bed and had to be lifted back. That was quite wrong. All those present said that nothing of the kind occurred. The judge acknowledged that Mrs Whitehouse’s description could not be accurate: but nevertheless he made this finding:

‘Though Mrs Whitehouse’s description of what occurred to her when the forceps were applied may not be exact in detail, I believe her, in so far as her description can be taken to be understood, as a pulling of her towards the bottom of the delivery bed in a manner and with such force as to be inconsistent with a trial of forceps properly carried out.'”

WHY THE COURT OF APPEAL OVERTURNED THIS FINDING OF FACT

The Court of Appeal held that the mother’s evidence was inconsistent with the evidence of the medical practitioners who were present.  Again, this can be seen in the judgment of Lord Denning M.R.
“If this were the case, surely Dr Skinner and the others there would have seen it. Yet they gave evidence that there was no such pulling at all.”

“The judge’s findings of fact

We were reminded once again of the caution to be observed before interfering with the findings of fact by a trial judge. The cases on it are well known. But this case is different. The medical notes, made at the time, were accepted as accurate. The evidence of all those present was accepted as truthful and accurate, except for Mrs Whitehouse. The judge did not disbelieve any of them. None of this evidence disclosed any negligence by Mr Jordan at all. The judge found against him for two reasons: (i) the judge’s interpretation of the report of Professor McLaren, especially of the word ‘disimpacted’; (ii) the judge’s interpretation of the evidence of Mrs Whitehouse.

The judge concluded that Mr Jordan ‘pulled too hard and too long so that the foetus became wedged or stuck’.

My assessment

I must say that I think those two points are quite insufficient to convict Mr Jordan of negligence. Professor McLaren’s report itself refutes any suggestion of negligence. It is not right, therefore, to read it as if it contained an admission of negligence. The judge read too much into the word ‘disimpacted’. As to Mrs Whitehouse’s evidence, she was shown to be wrong in so many respects that it is not right to accept her evidence in contradiction of all those present at the time.

I would therefore myself reverse the judge’s finding that Mr Jordan ‘pulled too hard and too long’. He acted with every care and skill. The damage to the baby was one of those unfortunate things which happen in the best of hospitals, despite all care.”

 

THE JUDGMENT OF LAWTON L.J.

“Whatever Mr Jordan did was in the presence of witnesses. Present were the mother, a junior registrar (Dr Skinner), an anaesthetist and two midwives. Both Mr Jordan and Dr Skinner said that nothing untoward had happened. The midwives and the anaesthetist were not called, which is not surprising as the medical and nursing staff in large hospitals move around a lot and these events had occurred nearly nine years before the trial. The mother gave an account of what had happened. The trial judge accepted the substance of it. What he said about this part of her evidence was this:

‘Though Mrs Whitehouse’s description of what occurred to her when the forceps were applied may not be exact in its clinical detail, I believe her, in so far as her description can be understood as a pulling of her toward the bottom of the delivery bed and in a manner and with such force as to be inconsistent with a trial of forceps properly carried out.’

This was the only relevant part of the mother’s evidence which he did accept. What she said had happened could not have happened. All the medical witnesses who were asked about the details of her account agreed that even if Mr Jordan had pulled too hard he could not have caused the physical movements which she described. Professor Sir John Stallworthy suggested that she might have been pulled off the delivery bed. She might; but this is not what she said had happened and if it had happened those present would have had to act to get her back on the delivery bed. Dr Skinner would surely have remembered an event of this kind as it was his task to make the mother as comfortable as possible whilst Mr Jordan was using the forceps. In my judgment the trial judge should not have accepted that the mother could give any worthwhile evidence on the question whether Mr Jordan pulled too hard and too long. This is, in my opinion, one of the rare cases in which an appellate judge is entitled to disregard a trial judge’s assessment of the reliability of a witness. In Lord Sumner’s words in The Hontestroom ([1927] AC 37 at 47) the trial judge in this case ‘palpably misused his advantage’ in having seen and heard the mother. These advantages could not be used, as the trial judge used them, to turn an account of what had happened which physically could not have taken place, into one which could. That is what he did, as the following passage in his judgment shows:

‘According to Mrs Whitehouse when the forceps were applied “It felt like a deadened electric shock that lifted my hips off the table” and she described her buttocks and hips being lifted off the table. This cannot be an accurate description since the pull is downwards, but it could be that she was pulled towards the bottom of the delivery bed depending on the amount of force used.’ (Emphasis mine.)

It cannot be right that a finding of negligence against an experienced obstetrician should rest on a speculation as to what might have happened to the mother.”

 

THE JUDGMENT OF DONALDSON L.J.

Donaldson L.J. delivered a dissenting judgment. However he agreed that the trial judge’s findings of fact could not be upheld.

“There is only one finding by the judge with which I feel able to quarrel. He seems to have found that Mrs Whitehouse was pulled towards the bottom of the bed in the sense that her body was moved. This cannot be right. He had already declined to accept her evidence in almost every other respect. In this he was no doubt correct. It is no criticism 
of Mrs Whitehouse to say that she was so emotionally involved, so bitter, so convinced that Mr Jordan was to be blamed, and had had so long to mull over the traumatic events of the birth, that it would have been remarkable if she had been an objective and reliable witness on any crucial matter. She had in fact said that it felt as if her hips were lifted upwards. This cannot in fact have happened. What it felt like to her is quite another matter. But that can hardly assist, since the lower part of her body was under the influence of an epidural anaesthetic and in such circumstances sensations can clearly be entirely misleading. Nor can she have been moved on the bed to any unusual extent without the knowledge of Dr Skinner, whose hand she was gripping tightly. But he claimed to have no recollection of any such unusual movement and there is no indication that the judge rejected his evidence.”

THE DECISION IN THE HOUSE OF LORDS

The question in the House of Lords, therefore, was summarised in the speech of Lord Wilberforce.
“The essential and very difficult question therefore has to be faced whether, on a pure question of fact, the Court of Appeal was justified in reversing the decision of the
trial judge.”
“First, there was the evidence of the mother—in the abstract the best
person to know exactly what happened. In the concrete, the situation was
otherwise. She had been in labour for nearly twenty-four hours: recorded
as distressed: there had been vomiting: she was—for understandable
reasons connected with her family—intensely anxious and tense: she was in
a condition of lack of confidence in the medical procedure. She was under
epidural anaesthetic, so inhibited from feeling unless very imprecisely what
was going on. In these conditions she testified as follows: [when the forceps
were applied] ” It felt like a deadened electric shock that lifted my hips off
” the table up off the bed “. This is also what she told the eminent
professors who on this basis prepared their report for the plaintiff. But the
judge—inevitably—did not accept this. No witness regarded it as
possible—any traction must have been downwards. Dr. Skinner, who was
standing by her side the whole time, said that nothing like this occurred—he
would have seen it and remembered it ” for its fantasticness “. With all
allowance for professional loyalty this evidence is too strong to be totally
discounted. But, though rejecting this account, the judge did make some
use of it: he said ” it could be that she was pulled towards the bottom of
” the delivery bed depending upon the amount of force used “. But this
does not prove that excessive force was used, and that is what is required.
Again, in the crucial conclusory part of his judgment he says:
” Though Mrs. Whitehouse’s description of what occurred to her
” when the forceps were applied may not be exact in its clinical detail,
” I believe her, in so far as her description can be taken to be
” understood, as a pulling of her toward the bottom of the delivery
” bed in a manner and with such force as to be inconsistent with a trial
” of forceps properly carried out.”5
But I must agree with the majority of the Court of Appeal that I cannot
accept this as a defensible finding. A process by which, after rejecting the
account given by a witness—and it was more than inexact ” in clinical
” detail ” —that account is reconstructed so as to be evidence not of a
general character, but of a precise and critical degree of traction supposed to
differ from what would have been quite proper, seems to me with all
respect to be illegitimate. If excessive traction is otherwise proved, her
evidence might be consistent with that, but it cannot be used itself as
evidence of that excess. I think that the Court of Appeal was quite right
to discard this finding. In this they were unanimous.

THE TRIAL JUDGE GOT DISTRACTED BY INESSENTIAL QUESTIONS

There was consideration of how the trial judge became sidelined.

“The learned judge’s conclusion was ” I find it difficult to accept Professor
” McLaren’s explanation of his use of the word ‘ impacted ‘”—and this
was a critical finding against Mr. Jordan.But with respect I think that
the mass of medical evidence had led him to focus on an inessential
question. The argument was not about the meaning of a word, but about
what Mr. Jordan did. Mr. Jordan gave a complete and detailed account
of what he did. He proceeded to the point when the baby would go no
further. He denied that it was ” stuck “. He said that he easily pushed
it up. All of this was consistent with sound medical practice, and with a
possible use of the terminology. If Professor McLaren had thought, after
discussing the case with Mr. Jordan, that something had gone wrong, and
that the head had become wedged through excessive force, it is incredible
that, in the context of a wholly disculpatory report, he would have used
a word meaning ” wedged by force ” without some explanation. It is
quite simple to suppose that the word was used to refer to the routine
action in preparation for Caesarean section.
In my opinion, the Court of Appeal was justified in concluding that
this, together with the evidence of Mrs. Whitehouse which formed the main
pillars of the judgment, was not nearly of sufficient strength to lead to a
finding of professional negligence.”

THE SPEECH OF

Regarding this important matter the learned judge said:

” Though Mrs. Whitehouse’s description of what occurred to her
” when the forceps were applied may not be exact in its clinical detail,
” I believe her, insofar as her description can be taken to be understood,
” as a pulling of her toward the bottom of the delivery bed in a
” manner and with such force as to be inconsistent with a trial of
” forceps properly carried out “.
My Lords, I have some difficulty in following how anything in
Mrs. Whitehouse’s testimony could be ” understood ” in the sense adopted
by the learned judge. She was the only witness who in direct terms spoke
adversely of the degree of force exerted by Mr. Jordan and he had found
her unreliable in several respects. Once more the learned judge rejected
her evidence, this time in relation to what happened when the forceps were
applied. In its place he ” believed ” an account which, while to a degree in
conformity with what Sir John Stallworthy said could happen in forceps
delivery, was one which she herself did not advance. It was accordingly
not such a finding as an appellate court, lacking the judge’s advantage of
seeing and hearing the witnesses, is normally obliged to leave undisturbed.
It was in truth a finding without an evidential basis.”

 

THE SPEECH OF LORD FRASER OF TULLYBELTON

The judge’s assessment of Mrs Whitehouse’s evidence was considered in detail.

“In my opinion that conclusion contains two serious flaws, either of which
would be enough to make it unacceptable. Firstly I do not consider that
it is permissible to accept Mrs. Whitehouse’s evidence ” in so far as ” her
description can be taken to mean something different from what she said,
and something which was not tested by a cross examination of the
witnesses, including the defendant and Dr. Skinner, who could have
confirmed or denied it. I agree with Lawton L.J. who said this:
” In Lord Sumner’s words in the The Hontestroom the trial judge in
” this case ‘ palpably misused his advantage ‘ in having seen and heard
” the mother. These advantages could not be used, as the trial judge
” used them, to turn an account of what had happened which physically
” could not have taken place, into one which could.”
Secondly, even if the interpretation of Mrs. Whitehouse’s evidence were
correct, it would not by itself indicate that the degree of force used was
excessive and inconsistent with a trial of forceps delivery properly
carried out.”

SO THIS WAS A DECISION ON THE FACTS

There are comments in the Court of Appeal and House of Lords about procedural and evidential matters surrounding the trial and how this led to the difficulties that arose.  These will be considered in a later post.

AND THE RELEVANCE OF THIS TO PRACTITIONERS TODAY IS?

There is much written about clinical negligence, in particular the standard of care. Much effort is spent on considering the law, and much money is spent on commissioning medical experts. However a surprising number of clinical negligence cases rest on findings of facts. The basic task of investigating, and assessing these facts, is often overlooked. It is certainly a skill that is rarely taught to lawyers.

RELATED POSTS

As an advocate I would be expected to provide “evidence” in support of my proposition that many clinical negligence cases rest on the facts.  There is plenty. This blog has covered many of the key cases on this issue over the past three years.

 

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