WITNESS EVIDENCE AND CLINICAL NEGLIGENCE: THE COURT CONSIDERS WHAT WAS SAID – 17 YEARS AFTER THE EVENT

December 1, 2021 · by · in Civil evidence, Clinical Negligence, Witness statements

In HTR v Nottingham University Hospitals NHS Trust [2021] EWHC 3228 (QB) Mr Justice Cotter considered the issue of the reliability of witness evidence when the events being considered occurred 17 years previously.  It is an example of the kind of case where the assessment of witness evidence is central to the outcome. In this case the judge found in favour of the claimant.

 

THE CASE

The claimant brought an action alleging negligence which led to cerebral palsy on his birth.  The dispute between the parties was purely factual.  Essentially the question was whether the claimant’s mother had mentioned reduced fetal movement to a doctor at an antenatal clinic.

THE DEFENDANT’S APPLICATION FOR RELIEF FROM SANCTIONS IN RELATION TO WITNESS EVIDENCE

Given that the issues were clearly defined it is surprising to see the defendant make an application, the last working day before the trial, to rely on new witness evidence of the treating doctor.

8. Unfortunately, the first day of the trial was largely filled by discussion in relation to an application for relief for sanctions by the defendant in relation to two supplementary statements of Dr Salman dated 2nd September 2021 and 27th September 2021. This application, having been made on Friday 1st October 2021, notwithstanding the anticipated commencement of trial on Monday 4th October 2021, led to dispute between the parties as to matters including: whether the material covered in the supplementary statements elaborated upon or contradicted the evidence in Dr Salman’s original statement; the need for expert handwriting evidence, and as a consequence an adjournment of the trial date; and the practical approach to any likely examination and cross-examination of Dr Salman in the event that certain paragraphs were not admitted.
9. Ultimately, these matters were resolved by a concession by Mr Nolan QC for the Defendant that only paragraphs 1 – 15 and 31 – 38 (each inclusive) of Dr Salman’s first supplementary statement dated 2nd September 2021, and the entirety of Dr Salman’s second supplementary statement dated 27th September 2021, should be admitted. It was also agreed that the Claimant had permission to rely upon an additional statement from Mr Jeremy Brocklesby, Consultant Obstetrician, commenting upon matters set out in the second supplementary witness statement of Dr Salman.
10. These discussions brought to the fore a particular difficulty affecting the determination of the factual issues in dispute. The reproductions in the trial bundle of the key contemporaneous documents, and specifically the medical record relating to LJR’ appointment on 6th October 2004, were very difficult to read and degraded in quality, owing to the age of those documents, their initial production on microfiche, and deterioration in legibility arising from their subsequent scanning and photocopying.

 

THE DILEMMA FACING THE COURT

The doctor in question was first contacted about the claim in 2018 – some 13-14 years after the events.  “Quite understandably, she has no independent recollection of seeing LJR during what was (as she described it) a routine clinic assessment in October 2004.”

PROBLEMS WITH THE DOCTOR’S EVIDENCE

The judge identified problems with the doctor’s evidence.  One of these was the familiar issue of a doctor looking back, with no recollection, but with years of subsequent training and experience colouring their view as to what had been done.

50. Dr Salman’s evidence was that she was certain that she did not perform the ultrasound scan as she had not been trained. She believed that in all probability the scan would have been performed by a sonographer. She also did not think that there was a portable ultrasound machine available in the antenatal clinic at the time. She stated that she had completed the three sentence entry in the medical notes (with her signature against it) and that someone else had written the other notes which gave her the information she needed.
51. During cross-examination, Dr Salman was taken to the following extract within her second supplementary witness statement, dated 27th September 2021.
“to be absolutely clear, whatever the state of my training in October 2004, I was never trained to perform ultrasound scans, I never scanned, I still don’t scan”
52. When cross-examined she stated that she was referring to “formal” training and that she received informal “hands on” training towards the end of her second year, in December 2004. This was whilst working on the labour ward, and involved use of the portable scanner to confirm presentation. She also stated that once trained she had done such scans infrequently over two to three years.
53. It is very difficult to understand how Dr Salman came to prepare and verify a statement, the sole purpose of which was to address one issue (being a Part 18 request; “Has Dr Salman ever carried out ultrasound scans? If so, during which period of her career”) which was so fundamentally incorrect a fortiori when expressly setting out that she was making matters “absolutely clear”. I do not accept Mr Elgot’s submission that as she was less than careful in her evidence, it could be assumed that she was less than careful as a doctor. However, I received no satisfactory explanation for this very seriously misleading assertion which provoked an expression of some incredulity from Dr Brocklesbury in his responsive statement dated 1 October 2021. It resulted in the balance of her evidence, when not corroborated by records or other witnesses, having to be treated with considerable caution—an example being her oral evidence that she never used a portable scanning machine during an ante-natal clinic, but only ever on the labour ward. I do not think that she can remember her work so well as to be able to make such a statement with the certainty with which she made it and, after considering all the other evidence, I do not accept it as correct.
54. There were other areas of concern within Dr Salman’s evidence. She stated in relation to LJR’s scan that:
“I think she would have been seen by a sonographer who would have carried out the ultrasound scan to check the baby’s presentation.”
When asked about doctors undertaking presentation scans in the ante-natal clinic, Dr Salman stated,
“I’ve never seen it and no-one has told me that they did this”.
55. However, Dr Harper, who was a registrar at the time, set out a very different picture in her witness statement:
“In 2004 it was quite common for us to undertake our own ultrasound scans to identify the presentation of the baby using a spare machine in one of our assessment rooms.”   
56. Mr Fay, the consultant , also set out in his witness statement that it was quite common practice for competent senior trainees to be asked by trainees to perform a simple ultrasound scan on women seen by them in the antenatal clinic, to confirm the presenting part of the fetus when a breech presentation.
57. In my view this evidence, from two sources with contemporaneous knowledge, wholly undermines Dr Salman’s confident assertion that she had “never seen it”, where ‘it’ refers to the practice of doctors undertaking presentation scans. I think it highly likely that she had seen it.
58. Dr Salman says that she took the issue of fetal movement very seriously and she stated that it was not enough to see fetal movement on a scan if there was a report of reduced movement, but that such a report had to be escalated. However, I think it likely that her recollection has been affected by years of subsequent clinical experience, and she has, unintentionally, conflated current practice (which, as set out above,  has changed in terms of emphasis since the publishing of a Green Top guide on reduced fetal movements in 2011) with the practice in 2004.  

FINDINGS OF FACT

The judge drew heavily on the case law flowing from Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm),

(This part of the judgment provides a useful “cut out and keep” summary of the law relating to witness recollection and witness evidence and I have reproduced in below).

The judge drew heavily on the “building blocks”. He found that the doctor had carried out the scan

103. However after careful consideration of all the available evidence on the issue ( and also taking into account the lack of some evidence such as any of the usual records completed by a sonographer) I am satisfied that Dr Salman is more likely than not to have undertaken the ultrasound.
104. As I have stated it is sometimes the case, when considering all the evidence in a case, that not all of pieces of the jigsaw can be easily fitted together. This is the case here; there is some inconsistency between the practices and available ultrasound machines on the ante natal clinic. However, I am satisfied that Dr Salman is incorrect in her recollection as to when she was informally trained as to use of a portable ultrasound machine to check presentation and as at 6th October 2004 she was able to, and did in this instance, undertake a quick and straightforward scan using a machine available on or to the clinic.
105. This finding is significant in terms of the central issue in the case as if my conclusion had been otherwise, it would have been likely to adversely impact upon the reliance that can be placed upon the recollection of LJR and Mrs Smith. My finding is that they are correct as to what took place and this further supports their ability to accurately recall the essential elements of what took place on and in the days surrounding the 6th October 2004. However just because I accept that LJR is correct in this aspect of her evidence does not mean that she is necessarily correct as to whether she raised concern over a lack of fetal movement. The recollection of witnesses can be correct in some respects and erroneous in other by reason of the mental processes outlined by Leggat J.     

THE JUDGE ACCEPTED THE RECOLLECTION OF THE CLAIMANT’S MOTHER

The judge gave detailed reasons for accepting the evidence of the claimant’s mother as to what was said in the examination.

114. In my judgment my finding must mainly turn upon my assessment of the reliability of LJR’s recollection.
115. The building blocks and findings set out above provide substantial support for her evidence that she raised a concern and was reassured by Dr Salman.
116. As I have already set out, medical records are usually of very considerable importance in clinical negligence cases. However, in this case they provide some, but only some, assistance on the central issue of fact. Specifically although the brief entry in the notes made by Dr Salman on the 6th October records active fetal movement, this is not, of itself, contradictory to the expression of a concern about reduced fetal movement. For the absence of a reference to carry substantial weight it required acceptance of Dr Salman’s evidence that if reduced movement had been raised she would have recorded it. As I have set out it is my judgment that Dr Salman’s evidence needs to be treated with considerable caution generally and as regards this specific point I find that her subsequent years of practice, many of them post 2011 when the emphasis on the importance of reduced fetal movement changed to a degree, has coloured her recollection. I do not accept her evidence as correct on this issue. 
117. I also take into account that LJR compiled her 2012 statement without sight of the medical records i.e. she was solely reliant on her recollection and has, been proved right on issues such as the fact of a visit by Dr Salman after the Claimant’s birth.
118. Having carefully considered all the evidence I am satisfied that LJR told Dr Salman that she was concerned about reduced fetal movement and that she had not felt a great deal of movement in the last day or so.  I am satisfied that LJR did raise that concern.
Conclusion
119. As I am satisfied that LJR did raise a concern about reduced fetal movement at the clinic on 6th October 2004 she has established a breach of duty.

 

THE JUDGMENT ON WITNESS EVIDENCE
Findings of fact
General observations
    1. I start with some general observations about the accuracy of recollection and medical records.
    1. As noted by Stewart J in Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) and by Warby J (as he then was)  in Dutta v General Medical Council [2020] EWHC 1974 (Admin), there has been a considerable body of authority in recent years setting out the key principles in relation to the judicial determination of facts and the approach to witness evidence. These cases include Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) (Leggatt J, as he then was); Lachaux v Lachaux [2017] EWHC 385 (Fam), [2017] 4 WLR 57 (Mostyn J); and Carmarthenshire County Council v Y [2017] EWFC 36, [2017] 4 WLR 136 (Mostyn J).
    1. In Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm), Leggatt J made the following observations:
“16. While everybody knows that memory is fallible, I do not believe that the legal system sufficiently absorbs the lessons of a century of psychological research into the nature of memory and the unreliability of eye witness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other peoples’ memories are unreliable and believe our memories to be more faithful then they are. Two common (and related) errors are supposed: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
  1. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades over (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flash bulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flash bulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience). External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which have not happened, which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
  2. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestion about an event in circumstances where his or her memory of it is already weak due to the passage of time”.
    1. At [19] – [22], Leggatt J went on consider the relationship between these characteristics of memory and the civil litigation process—including the “considerable interference with memory” introduced by the procedure of preparing for trial, and the potential biases and influences exerted through the process of preparing witness statements and giving evidence. In those circumstances, he suggested at [22] that:
“… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.” [Emphasis added.]
    1. While Gestmin was a commercial case (and notwithstanding that Leggatt J’s observations explicitly referred to that context), the ‘Gestmin approach’ (as it has become known) has broader utility. In Carmarthenshire County Council v Y [2017] EWFC 36, Mostyn J noted at [17] in reference to paragraph 22 of Gestmin that:
“In my opinion 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. Mostyn J observed that while “the general rule is that oral evidence given under cross-examination is the gold standard” (at [7]), noting (as summarised by Stewart J in Kimathi, above, at [96]) that it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness, “[i]t should not be thought however that oral evidence under cross-examination is the be all and end all of forensic proof” (at [17]).
    1. Turning to medical records in Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283, Tomlinson LJ made the following observation:
“[12]      … [I]t is too obvious to need stating that simply because a document is apparently contemporary does not absolve the court of deciding whether it is a reliable record and what weight can be given to it. Some documents are by their nature likely to be reliable, and medical records ordinarily fall into that category. Other documents may be less obviously reliable, as when written by a person with imperfect understanding of the issues under discussion, or with an axe to grind.”
    1. In those circumstances, Tomlinson LJ “commend[ed] the approach of His Honour Judge Collender QC, sitting as a judge of the High Court, in EW v Johnson [2015] EWHC 276 (QB) where he said, at paragraph 71 of his judgment”:
“I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate.”
    1. Tomlinson LJ noted at [15] that while there was general force in the submissions made by Counsel that clinical notes are inherently likely to be reliable,
“here [those submissions] are less persuasive because there is so much uncertainty concerning the circumstances in which the critical note was made”.
    1. Similarly, in HXC v Hind & Craze [2020] EWHC (QB) (5th October 2020), faced with a dispute about the accuracy of medical records, I stated at [137] that:
“In my judgment a court can and often will taking a starting point, but no more than a starting point, that a contemporaneous entry made by a medical professional is likely to be a correct and accurate record of what was said and done at a consultation/examination.” [Emphasis added]
    1. As for the approach to evaluation of the evidence of a witness I set out my view in Pomphrey v Secretary of State for Health & North Bristol NHS Trust [2019] EWHC QBD [2019] Med LR Plus 25:
[31]   I start with some very general and basic propositions. When evaluating the evidence of a witness whose testimony has been challenged it should be broken down into its component parts. If one element is incorrect it may, but does not necessarily mean, that the rest of the evidence is unreliable. There are a number of reasons why an incorrect element has crept in. Apart from the obvious loss of recollection due to the passage of time, there may be a process of conscious or subconscious reconstruction or exposure to the recollection of another which has corrupted or created the recollection of an event or part of an event.
[32]   The court must also have regard to the fact that there can be bias, conscious or subconscious within the recollection process. When asked to recall an event that took place some time ago within the context of criticism people often take an initial stance that they cannot have been at fault; all the more so if the act in question was in terms of their ordinary lives; unmemorable. There is a tendency to fall back on usual practice with the tell-tale statement being “I would have” rather than “I remember that I did”.
[33]   To approach the exercise of fact finding in a complex case (when faced with stark conflicts in witness evidence) as necessarily requiring all the pieces of the jigsaw to be fitted together is often both flawed and an exercise in the impossible. This is because individual pieces of the jigsaw may be wrong, distorted to a greater or lesser degree or absent. Indeed, it is not possible to make findings if the state of the evidence or other matters mean that it is not proper to do so (see generally Rhesa Shipping Co SA v Edmunds (The Popi (M) [1985] 1 WLR 948). However, often a sufficient number of pieces may be fitted together to allow the full picture to be seen.
    1. The hearing in this case took place seventeen years to the day after the events in issue. LJR first prepared a statement eight years after the meeting with Dr Salman. I have no doubt she has discussed what took place with her mother and husband, both of whom gave evidence, on many occasions. As for Dr Salman she was first asked to cast her mind back to October 2004 in 2018. Fourteen years of practice as a Doctor had intervened during which the focus amongst practitioners on reduced fetal movements had increased. As a result I have considered the reliability of the recollections of the principal witnesses with great care.
    1. The critical medical note records active fetal movement (“Active FMs”). However, such an entry, which does not state if the movements were seen on scan or reported by LJR, does not preclude concern having been expressed by LJR that there had been reduced (as opposed to no) movement recently. Dr Salman’s evidence was that if such concern has been expressed she would have recorded it, and as she had not made a record of such a concern it cannot have been raised.  However as I have already stated I believe that her recollection has been affected by the intervening years of practice and the greater emphasis on reduced fetal movement since 2011.
    1. Mr Nolan QC understandably placed heavy reliance on the entries in the medical records on and after the 10Th October which made no reference to LJR’s concern about reduced fetal movements on Wednesday (or from Tuesday evening) and in   particular upon the entry made on 12th October 2004 by Dr  Budge.  However LJR’s explanation; that she was reassured on the Wednesday by Dr Salman about fetal movement, and so discounted that day, is potentially supported by the record that
“(the) scan reported Ⓝ movements.
The reference to a strong movement on Friday within Dr Budge’s note is wholly consistent with her evidence.
Tags: , ,