GIVING EVIDENCE OF MATTERS THAT HAPPENED 17 YEARS EARLIER: AN EXAMPLE IN THE CONTEXT OF CLINICAL NEGLIGENCE

This blog has looked at the issues relating to memory and witness evidence many times.  Particularly the problems of people giving evidence many years after the event. An example of these difficulties can be seen in the judgment of Mrs Justice Lambert in Sanderson v Guy’s And Thomas’ NHS Foundation [2020] EWHC 20 (QB).

“A forensic scrutiny of timings, 17 years after the events in question, is bound to involve an element of imprecision. “

THE CASE

The claimant was born in 2002. She brought an action for damages alleging that there had been negligence in her childbirth which had caused cerebral palsy. The main witness for the defendant was the treating consultant obstetrician.  The claimant was not successful.

THE JUDGE’S COMMENTARY ON THE EVIDENCE

The timing of various events were important parts of the case. The judge held that it was important that the evidence was looked at realistically.

1. The events in question took place over 17 years ago. A letter of claim was sent in 2012 but the claim advanced in that document bears little relationship to the claim as now formulated. Ms Bewley confirmed that although she has some recollection of the events under scrutiny, her account of her management of the later stages of the labour and delivery has been an exercise in reconstruction from what memory remains, the contemporaneous records and what she believed she would have done and thought from her knowledge of her practice in 2002. She has not been helped by her contemporaneous records partly because they were written in a block after the delivery and also because to the extent that she noticed the timings of events as she was working they would have been taken from a variety of different clocks, none of which were synchronised. No criticism is made of her for her note keeping. As she observed not only were the early 2000s a different era of note keeping practice, but she was working in high pressure and then in emergency circumstances.

2. Ms Bewley has produced a timeline of events which has been substantially agreed between the parties. However, it is important to be realistic about the times set out in that document. A forensic scrutiny of timings, 17 years after the events in question, is bound to involve an element of imprecision. I recognise that, in a case such as this, where every fraction of a minute of delay in delivery may have an impact upon the Claimant’s condition, the court must do the best it can to arrive at a timeline which is both as accurate and as precise as possible. However, there was an element of unreality to some of the questions posed by Mr Preston during his cross examination of Ms Bewley when attempting to refine the timeline down still further from that which had been advanced in Ms Bewley’s witness statement. It is impossible now to establish even on the balance of probabilities whether, for example, Ms Bewley arrived back in Room 4 with the fetal blood sample kit at 00.53 exactly or closer to 00.54 or even later. It is impossible now to reconstruct exactly how long Ms Bewley would have spent scrutinising the trace following her arrival back in Room 4 at around 00.53/54 before making the decision that delivery was urgently needed; or drill down to the exact fraction of a minute when she returned to Room 4 and made her final decision to get on and deliver “whatever” in Room 4.

THE EVIDENCE OF THE TREATING DOCTOR

The way in which the treating doctor gave evidence was of some importance. In particular with no attempt to trespass into the role of expert witness.

“She was an impressive witness. She gave her evidence in a non-defensive matter of fact way which suggested to me that her evidence was both an honest and, to the best of her ability, reliable reconstruction of the sequence of events and her clinical reasoning. She was careful to give as neutral a factual account of her care and its rationale as she could and to avoid trespassing into areas of expert opinion, notwithstanding her expertise and experience both in 2002 and at the date of trial. I accept her account of her involvement and I accept as matters of fact her explanations for the decisions which she made.”