WITNESS EVIDENCE AND CLINICAL NEGLIGENCE: TO WHAT EXTENT IS “HYPOTHETICAL” EVIDENCE FROM DOCTORS ADMISSIBLE?

The judgment of Mrs Justice Lambert in AB v East Lancashire Hospitals NHS Trust [2019] EWHC 3542 (QB), provides an important lessons for those who draft witness statements, particularly on behalf of defendants in clinical negligence cases.   The question is to what extent can a defendant adduce, what is essentially hypothetical, evidence in response to allegations of what should have been done.  A defendant drafting witness statements in these circumstances has to draft with considerable care. However the central point is that such evidence (properly drafted) is admissible.

“I have therefore no doubt that, insofar as the evidence of Ms Clarke and Ms Hamer describes what they would have done had DE been referred to them and why they would have taken their particular course, is admissible. Further, that evidence does no more than confront and deal with the factual allegations in the Re-Re-Amended Particulars of Claim at paragraph 24 which assert precisely what “would have happened” if a referral to a senior obstetrician had been made in November 2010 and February 2011. In these circumstances, it would be curious if for some reason the evidence of those doctors to whom it is said a referral would have been made were not admissible.”

THE CASE

The minor claimant brought an action for clinical negligence during her delivery.

THE JUDGE’S OBSERVATIONS ON THE FACTUAL EVIDENCE

The judge made observations in relation to the evidence as a whole and noted the claimant’s objection to two doctors called on behalf of the defendant.

Three points need to be made at this stage: first, save for DE who had a partial recollection of events in February 2011, none of the witnesses had any memory of the events in question and all were therefore reconstructing events on the basis of the records and usual practice. This is hardly surprising given the lapse of time since the events took place. Second, although I heard evidence from members of the midwifery team, following cross examination of the Claimant’s expert in midwifery, Ms Abigail Osbourne, the claim against the midwives in negligence was withdrawn. It follows therefore that the midwifery factual evidence is now of only limited importance and, as Mr Featherby put it in his closing submissions, relevant only to the extent that it sheds light upon the management of Dr Dadebo and Dr Lee. Third, two witnesses, Ms Fiona Clarke and Ms Fiona Hamer, both consultant obstetricians employed by the Trust at the relevant times in November 2010 and February 2011, gave evidence concerning the action which, hypothetically, they would have taken had a referral been made to them in November 2010 (Ms Clarke) or in February 2011 (Ms Hamer). At the beginning of the trial, objection was taken by Mr Featherby to the admissibility of this evidence. It was agreed however that I would hear the evidence nonetheless and rule on its admissibility in this judgment. I deal with the point below at paragraphs (57-61)

THE “HYPOTHETICAL EVIDENCE” OF THE DEFENDANT

The judge went on to consider the claimant’s objections to the “hypothetical” evidence adduced by the defendant, she ruled that the evidence was admissible – although not definitive.

a) Admissibility of Evidence of Clarke and Hamer
  1. I start by clearing the decks of the issue raised by Mr Featherby concerning the admissibility of the evidence of Ms Clarke and Ms Hamer. It must be said that, even at the point of his closing submissions, it remained unclear to me whether there was a challenge to the admissibility of the whole of that evidence, or only part of the evidence, or whether the impact of the objection is that I should place little or no weight on the evidence of those two witnesses.
  2. The starting point (and, in my view, end point) to any challenge on the admissibility of what, as a matter of fact would have occurred if DE had been referred to a consultant obstetrician in either November 2010 or February 2011, is Bolitho [see above]. That case concerned an alleged negligent failure by a paediatrician to attend a child with breathing difficulties and to intubate. The paediatrician admitted a culpable failure to attend but denied that, had she done so, she would have intubated the Claimant. The case states that the approach to be taken by the court in these circumstances is to pose two questions: first, what would have been done had the clinician attended? Second, if she had failed to intubate, would that have been negligent? The first question involves a factual enquiry, to which the Bolam test is of no relevance. The Bolam test is however central to the second question. It follows that factual evidence dealing with what would, hypothetically, have happened in a particular set of circumstances is admissible evidence. To the extent that there is a dispute (as in this case) as to the reasonableness of that action, then I must assess it by reference to the Bolam test.
  3. I have therefore no doubt that, insofar as the evidence of Ms Clarke and Ms Hamer describes what they would have done had DE been referred to them and why they would have taken their particular course, is admissible. Further, that evidence does no more than confront and deal with the factual allegations in the Re-Re-Amended Particulars of Claim at paragraph 24 which assert precisely what “would have happened” if a referral to a senior obstetrician had been made in November 2010 and February 2011. In these circumstances, it would be curious if for some reason the evidence of those doctors to whom it is said a referral would have been made were not admissible.
  4. The witness statements provided by Ms Clarke and Ms Hamer are limited to what they would have done had DE been referred to them and their rationale. The statements were obviously carefully drafted with an eye to avoid trespassing into inadmissible opinion evidence. To the extent that in their oral evidence they did go further, then this was in response to the questions posed in cross examination by Mr Featherby. In any event though, I put out of my mind any part of their evidence in which they have commented more generally and with an expert eye on the issues raised in the case.
  5. As to the weight to attach to their evidence, I accept that they remain employees at the Trust. That said, they struck me as very fair and undefensive witnesses and I record at this stage that I accept their evidence concerning their management had DE been referred to them and the reasons which they gave for that management.
  6. However, I recognise the force of Mr Featherby’s submission that my evaluation of the merits of the claim should not be a question of weight of numbers (of witnesses) and to that extent I should not be tempted to reject Mr Mason’s evidence simply because there are three doctors (Clarke, Hamer and Howe) who would not have adopted the course which Mr Mason contends would have been the only reasonable course to take. I accept this point. My evaluation of Mr Mason evidence should not be and has not been influenced by the number of doctors which the Defendant has been able to marshal in support of its position.