WHEN WITNESSES DID NOT ATTEND TRIAL 3: ADVERSE INFERENCES ARE DRAWN IN A CLINICAL NEGLIGENCE CASE
There are three cases today about the implications of witnesses not attending trial. This was an issue in Asante v Guy’s and St Thomas’ NHS Foundation Trust  EWHC 2570 (QB). The absence of key witnesses from the defendant led to adverse inferences being drawn and the claimant succeeding in a claim for clinical negligence. (Those interesting in expert witnesses may like to read the judge’s observations on the defendant’s expert as well).
“Where the notes fall short, and are ambiguous or there are gaps, I accept that even though the burden remains on the Claimant, the Defendant should not have the benefit of those deficiencies, nor of unexplained lack of explanatory witness evidence.”
The claimant brought an action for clinical negligence arising from treatment that took place in 1999-2000 in relation to treatment of his sickle cell disease.
INCOMPLETE EVIDENCE FROM THE DEFENDANT
Her Honour Judge Taylor considered the evidence that the defendant had brought before the court.
There is an incomplete set of inpatient medical notes, and contemporaneous CT scans and laboratory reports are not available. There are some nursing notes, but these too are limited. In addition, no evidence has been given on the Defendant’s behalf by the treating physicians or nurses who were responsible for the Claimant’s care in the relevant period. The Defendant’s position is that attempts were made to locate some of those concerned, which were not successful given the passage of time. Civil Evidence Act notices in respect of the evidence of Mr Smith, Mr Davies and Mr Brown were served in 2016 some time before the trial, stating only that they had left the employment of the Defendant and efforts to date to trace them had been unsuccessful. There has been little information as to steps taken before or since then. I will return to this in due course, but the result is that the history is taken primarily from the notes which are available; the interpretation of some key documents being in dispute. Whilst Mr Asante and his mother have provided statements which have been admitted in evidence without challenge, they are understandably of limited evidential value in relation to the medical and technical aspects of the treatment given to the Claimant, but are of some assistance as to the history.
THE IMPACT OF THE ABSENT WITNESS ON THE JUDGE’S ASSESSMENT OF THE EVIDENCE
- In view of what he submits are deficiencies in the notes, both as to those missing, and the lack of explanation in those existing, combined with inadequate explanation for a lack of witness evidence called on behalf of the Defendant, Mr Collins also submits that the Defendant cannot invite the Court to draw favourable inferences from the records which are lacking in completeness due to the Defendant’ failures. The right approach is for the Court to judge the Claimant’s case benevolently and the Defendants’ case critically (cf. Keefe v Isle of Man Steam Packet Company  EWCA Civ 683; Raggett (deceased) v King’s College Hospital NHS Foundation Trust  EWHC 1604 (QB). Keefe, Raggett and Harding v Buckinghamshire Healthcare NHS Trust  EWHC 2393 are all instances where lack of important evidence was a consequence of the defendant’s breach of duty and support for the proposition that in such circumstances the court should judge the claimant’s case benevolently and the defendant’s case critically where that has led to a lack of information.
- The Defendant submits that this is not such a case. The absence of the key witnesses is explained by the Civil Evidence Act notices, primarily by lapse of time, so no adverse inference is warranted. In any event, the events took place too long ago for those involved to remember the events, or for their evidence to be useful. As far as the notes are concerned, the reasons for the orthopaedic team’s decisions are obvious, or can reasonably be inferred from the notes, which were short but not unduly so in accordance with the practice in 1999/2000.
- It is right that the CEA notices were served with little information, and that there is no notice or evidence as to the whereabouts, for example of Mr Mannion, who was also involved in the Claimant’s care. Whilst it is a long time ago, much of the evidence has been about what practices were in 1999/2000. It would have assisted to hear from those involved what their practices were at that time on the main issues, even if they did not recall all the detail of this case. As it is, I disagree with Mr Martin that the reasons for the orthopaedic team’s decisions are obvious in all aspects, or may reliably be inferred from the notes. The evidence of Mr McFadyen as to the importance of the degree of purulence and progress on 16 August 1999 highlights one significant example of an instance in which the inference invited is benevolent to the Defendant. The dispute over the meaning of “the problem” in the letter of 6 March another, in addition to several unexplained dead ends in proposed treatment which are at the heart of this dispute.
- Professor Atkins accepted that even where note taking was as it was in 1999/2000, at a bare minimum the notes should enable a reader to understand what the plan was, and why it was being undertaken. Where the notes fall short, and are ambiguous or there are gaps, I accept that even though the burden remains on the Claimant, the Defendant should not have the benefit of those deficiencies, nor of unexplained lack of explanatory witness evidence.