PROVING THINGS 213: CLINICAL NEGLIGENCE, WITNESS EVIDENCE AND MEDICAL NOTES

August 3, 2021 · by · in Civil evidence, Clinical Negligence, Witness statements

In Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) HHJ Robinson, sitting as a Judge of the High Court, had to consider competing witness evidence in the context of a medical negligence action.  It is an example of the importance of witness evidence, the Gestmin guidance and medical notes being significant, indeed decisive, in this context.  A copy of the judgment is available here.  Sheard v Do – Approved Judgment

“The fact that the claimant was readily prepared to confess to memory failings in relation to some issues gives me confidence in accepting the accuracy of his declared memory in relation to others.”

THE CASE

The claimant brought an action for clinical negligence. It was alleged that the first defendant doctor was not referring the claimant to hospital following his presentation at hospital.  The case rested, essentially, on precisely what was said during the consultation and the duration of the symptoms.

 

THE GESTMIN CRITERIA

The judgment contains a detailed consideration of the guidance in Gestmin and associated cases.

15. Both Counsel referred to the line of cases which includes Gestmin SGPS SA v Credit Suisse (UK) Ltd EWHC 3650 (Comm) and R (Dutta) v GMC [2020] EWHC 1974 (Admin). In Dutta Warby J analysed the Gestmin line of cases:
“39. There is now a considerable body of authority setting out the lessons of experience and of science in relation to the judicial determination of facts. Recent first instance authorities include Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm) (Leggatt J, as he then was) and two decisions of Mostyn J: Lachaux v Lachaux [2017] EWHC 385 (Fam) [2017] 4 WLR 57 and Carmarthenshire County Council v Y [2017] EWFC 36 [2017] 4 WLR 136. Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) [96]:
“i) Gestmin:
    • We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.
    • Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.
    • Events can come to be recalled as memories which did not happen at all or which happened to somebody else.
    • The process of civil litigation itself subjects the memories of witnesses to powerful biases.
    • Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.
    • The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”.
  1. ii) Lachaux:
    • Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities.  I extract from those citations, and from Mostyn J’s judgment, the following:
    • “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…“
    • “…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…”
    • Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.”
iii) Carmarthenshire County Council:
    • The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.
    • However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said: “…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context.”
  1. The emphasis in the above passages are those of Warby J.
  1. My attention was also drawn to dicta of HHJ Freedman (sitting as a Judge of the High Court) in Ismail v Joyce [2020] EWHC 3453 (QB). That was a case similar to this in that the fact finding exercise was directed towards what Mr Ismail had said to the defendant General Practitioner, Dr Joyce.  HHJ Freedman considered the line of cases ending with Dutta and said:
“29. In evaluating the lay evidence in this case, in particular that of the Claimant and her sister, I have found all these dicta to be of considerable assistance. They are of particular application in circumstances where medical records do not necessarily bear out of what is recalled by the Claimant and her sister. The inherent unreliability of memory does mean that it is fair and proper to test the accuracy of recollections of medical consultations against what is documented in the records.
“30. On the other hand, it does not necessarily follow that just because the complaint of a particular symptom does not feature in the record of a consultation, it was not, in fact, mentioned by the patient. Sometimes a doctor will obtain an extensive history and make a very detailed record. Sometimes, because of pressure of work or for whatever other reason, a doctor may take a less extensive history and will make a somewhat briefer note.
“31. I must also bear in mind that it is human nature for a patient not always to give precisely the same account of his or her symptoms to every doctor who examines him or her. Much may depend upon the questions which are asked by the doctor. Equally, the patient is likely to emphasise and stress the symptoms which are troubling them the most at the particular time of the examination. The medical records need to be scrutinised, with these matters in mind.”

THE DEFENDANT’S EVIDENCE

As is common in these circumstances the defendant doctor had very little real recollection of the examination.  He was reliant on the medical notes.

“54. The defendant very fairly explains in paragraph 7 of his witness statement that given the length of time which had passed since the consultation, he had no particular recollection of him or of the consultation itself. Thus the notes made by the Defendant are of critical importance.

CROSS-EXAMINATION ON THE NOTE

The defendant doctor was cross-examined in detail on the relevant notes.

57. The defendant was asked about his note and the triage note made shortly before he saw the claimant, which he had at the time of the consultation with the claimant.
58. Of the triage note he said the record “has had a virus for 3 weeks” would suggest a virus 3 weeks ago. He said: “he could have had a virus 3 weeks ago”.  He was asked for how long the claimant had suffered from a virus.  The defendant said “it depends on how you interpret [the triage note].  He could have had none for 3 weeks”.
59. It was suggested that the triage note was to the effect that the symptoms were continuing. The defendant replied that he could not objectively give an answer.  He could not say the claimant has had symptoms for a specific period.  The proposition that the claimant had symptoms for 3 weeks and that they were continuing was, said the defendant, based upon the interpretation of Mr de Bono.
60. The defendant was then asked questions about his own note. He said that he had not copied from the earlier triage note and that what was written by him came from the claimant. Asked whether the claimant had used the word “pyrexia” the defendant said that the claimant may have said “temperature”.
61. The defendant agreed that it would be important to record the length of time during which the symptoms had been present. He said that he had not recorded that duration in this case.  Asked if that fitted with his usual practice, he said he would normally state the length of the illness.  Asked if the failure to do so was substandard he said: “I’m only basing this on my notes”.
62. It was then suggested to the defendant that in fact he had recorded the duration:
Q:        If the note says symptoms have lasted for two weeks and continuing, you have recorded the duration?
A:        No.  In paragraph 39 of my [witness] statement it states: ‘had a viral illness 2 weeks ago’.
Q:        I want you to go on your note and your usual practice.  Where in the note does it say that symptoms resolved two weeks ago?
A:        It doesn’t.  I read it that he has had symptoms two weeks ago and that leads to the next part of the note … pyrexia and dizziness.
63. In an effort to test the validity of the defendant’s interpretation of the note, Mr de Bono asked whether it was clear that the note is saying that the symptoms had gone away two weeks ago. The Defendant said that it was “clear to me”.  The Defendant agreed that the purpose of such a note was to tell the next doctor to see the claimant what had happened.  He was then asked:
Q:        Would another doctor interpret the note as saying the symptoms had resolved and gone away two weeks ago?
A:        That is subjective.
The defendant agreed that notes should be objective.  He was asked if he thought there was anything wrong with that part of the note.  He said that he understood what he had written.
THE CLAIMANT’S RECOLLECTION
The claimant’s memory was far from perfect.
70. It is true that the claimant’s recollection of the consultation with the defendant is far from perfect, as he has fairly acknowledged. At various stages during cross examination he accepted his memory was far from perfect:
Q:  You told Dr Do that taking pain killers gave some improvement for a short time …?
A: I can’t be 100% sure what I said.
…
Q:  Dr Do asked you if you were suffering from any illness?
A: He could have said but I do not recall it.
…
Q:  Did he ask you about your medical history?
A: First of all, I don’t 100% again – it’s very hazy.
Q: Do you recall his asking about medication history?
A: I’ve got to be honest, no.  It could have happened.
…
Q: Do you recall being asked about social history?
A: No. [He agreed that the record was correct].
…
Q: Dr Do says the discussion came before the examination.  You say [in your witness statement] that the examination came first
A: I have to be honest, I’m not absolutely sure.  I have to say I don’t know.
72. Against that, he did not say that he could not recall anything at all. At certain points he gave clear evidence of his recollection.  The fact that the claimant was readily prepared to confess to memory failings in relation to some issues gives me confidence in accepting the accuracy of his declared memory in relation to others.

 

THE JUDGE’S VIEW OF THE NOTE

93. To return to the issue of the claimant’s complaint of viral illness, I have said earlier that the evidence, at that stage, was all one way apart from the interpretation put on the relevant note by the defendant. Having regard to the entirety of the relevant evidence, I am entirely satisfied that:
    • the claimant told the defendant that for the past two weeks he had been unwell with a viral illness which, as interpreted by the defendant, included symptoms of pyrexia and dizziness;
    • the note made by the defendant accurately recorded that history;
    • the defendant knew at the time he made the note that he was recording the presence of an ongoing complaint.
94. This interpretation is consistent with the application of Gestmin. There is no need to strain to interpret the ordinary and natural meaning of the recorded complaint.

 

THE RESULT

The judge found liability established.

103. In summary I am satisfied that the defendant, at the conclusion of the examination of the claimant, knew that:
    • the claimant complained of unremitting pain in the neck and at the very least the left shoulder such that he could not sleep;
    • he said he had been suffering from a viral like illness for 2 or 3 weeks;
    • the claimant told the defendant enough for the defendant to record that the illness was accompanied by pyrexia and dizziness;
    • the claimant required help in removing his shirt.
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