It is surprising how many clinical negligence cases rest, ultimately, on findings of fact as to what was said. An example can be seen in the judgment of Mr Justice Ritchie in Watson v Lancashire Teaching Hospitals NHS Foundation Trust [2022] EWHC 148 (QB).
WEBINAR ON WITNESS EVIDENCE
There is a webinar on the topic of “Witness evidence in Clinical Negligence Cases” on the 22nd March 2022. Booking details are available here.
This webinar takes a detailed look at recent cases where the evidence of lay witnesses has been crucial to issues of liability in clinical negligence cases.
Topics covered include:
- The court’s approach to the claimant’s evidence
- The court’s approach to lay evidence from doctors
- Are the medical notes definitive?
- The factors that courts take into account when deciding on credibility
The webinar takes a detailed look at many of the significant clinical negligence cases where witness evidence has been key to the issue of liability and causation.
THE CASE
The claimant brought an action for clinical negligence in failing to take steps to avoid the claimant suffering a stroke. Liability was admitted, however causation was denied. Consideration of causation depended very much on what was said in examinations. The judge preferred the defendant’s evidence on this point and the claim failed on the issue of causation.
THE JUDGMENT ON WITNESS EVIDENCE
There was a difference of evidence as to precisely went on an evening when the claimant was in hospital. The judge assessed the evidence brought on behalf of the parties.
The Claimant’s evidence
[20] In her witness statement the Claimant impliedly asserted that her fall on the 27th of January 2015 was caused by her vision in her left eye blurring. She wondered if she had blacked out. She asserts that between 11:00 pm and 11:30 pm on the 26th of March 2015 she got up to go to the bathroom and then went downstairs and sat on the sofa. Mick (Mr. Eastham) shouted to see if she was OK. She started to walk up the stairs and felt very confused and disorientated. She had bad pain all over her head. Her vision was disturbed and she felt very tired and weak. Her left arm felt very weak. Mick told her that the left side of her face was drooping. She could not speak clearly. She thought she was having a stroke. She asserts that 20 minutes later they got into a taxi and went to the Defendant’s hospital (that would make her time of arrival approximately midnight). She had to wait some time and then saw the triage nurse. He was male. She then waited until around 6:40 am when she saw Dr. Osborne and it is her evidence that Mick explained to Dr. Osborne what had happened. She considers her symptoms improved whilst at hospital although her headache remained, but the lights were hurting her eyes and she vomited on several occasions and she told the doctor about the lights and the vomiting. She asserts that she saw another clinician prior to seeing Dr. Osborne (there is no note of this by another doctor, there was a nursing note) and that doctor informed her that she would have a scan of her head. She asserts Mick made Dr. Osborne aware of her cluster migraines and she asserts a conversation in which Dr. Osborne and she discussed stroke and Dr. Osborne dismissed stroke because the symptoms were more in keeping with migraine. Her age in addition was too young to have a stroke.
[21] I note that the Claimant does not assert the she suffered any leg symptoms.
Michael Eastham
[22] Mr. Eastham gave evidence in accordance with his witness statement dated October 2019. In that he stated that he heard the Claimant get up to use the bathroom and then go downstairs. She did not come straight back up to bed so he went to the stairs to ask if she was OK. She started to walk up the stairs and she started laughing hysterically. He saw that her left arm and the left side of her face were hanging down. Her arm looked like a dead weight. He came downstairs because he was worried. (I note here that he does not suggest that the Claimant fell or could not walk). He had previously seen his grandmother have TIAs so he recognised the symptoms. He specifically stated that it was the left side of her face and that the medical records were wrong in stating it was the right side of her face. (I once again note that the Claimant’s pleaded case has not been amended to match Mr Eastham’s evidence). In any event he called a taxi which he says took about 20 minutes and in evidence he told me it took no more than 10 minutes to get to the hospital.
[23] He asserted that he explained matters to the triage nurse. They then had to wait until 6:50 am when they saw Dr. Osborne. He makes no mention of seeing any further clinician before Dr. Osborne. He gave evidence that the Claimant’s left sided weakness was gradually resolving during the wait but she still had a headache and was being sick and was struggling with lights, saying they were too bright.
[24] Mr Eastham asserts that when Dr. Osborne examined the Claimant she was “quite dismissive”. He accepts that he explained to Dr. Osborne that the Claimant had been suffering from cluster migraines. Dr. Osborne then advised that the Claimant’s symptoms were probably cluster migraines and explained that vomiting was not a symptom of stroke and that the Claimant was too young to have a stroke. Mr Eastham mentioned his granny having TIAs on three occasions but Dr. Osborne disagreed. The Claimant was later discharged without further tests or medication.
[25] It is noteworthy, at this stage, that Mr Eastham did not assert anywhere in his witness statement that the Claimant suffered left leg weakness. I shall return to this below when considering the report of Professor Brown provided in September of 2018. In addition left leg symptoms were not pleaded. Nor were they noted in the medical records made at the hospital. However, in his evidence he once again asserted that the Claimant suffered left leg weakness. I find this to be a part of his evidence which I do not accept.
Doctor Laura Osborne
[26] Dr. Osborne gave evidence in accordance with her witness statement dated 9th October 2019. Her married name is Osborne-Grant but I will call her doctor Osborne because that was her name at the time. She was an ST3 registrar at the time of giving evidence but at the time of the relevant events she was a trainee doctor in her second year of training. She had a vague recollection of the Claimant. She did not recall the specific details but did recall the Claimant’s quite pronounced photophobia when she used a light to read and write her medical records in the consultation and she recalls the room in which the consultation took place. Basically Dr. Osborne’s evidence was in accordance with the notes made in her very clear handwriting. She explained that it was her usual practise to ask what had occurred in an open question about why the Claimant had come to the hospital and she wrote down the matters that she was told chronologically. From the records Dr. Osborne thought it likely that she asked the Claimant to take her step by step through what had happened and she asserts that the history in the records is what she was told.
[27] Dr. Osborne was told that at approximately 11.30 on the night before, the Claimant woke up to get a drink and two minutes afterwards there was onset of various symptoms. Thereafter her notes chronologically set out, with each L shaped arrow, firstly a strange feeling with unexplainable visual disturbance “- aura”; secondly the Claimant’s boyfriend saw right facial droop and the Claimant struggling to talk; thirdly right sided headache; fourthly four times vomiting; fifthly photophobia; sixthly 15 to 20 minutes into the episode, the Claimant lost the use of her left arm.
[28] On questioning about vision, Dr. Osborne wrote down “? Blurry vision. No zigzags/lines.” Dr. Osborne then went on to carry out an examination of the patient under the ABCDE protocol which I don’t need to go through but I should say under D that Dr. Osborne examined the Claimant’s face and eyes and noticed and noted photophobia but no eye deficiency and no facial droop. She noted intact cranial nerves numbered 2 to 12. She also noted the power in the right and left arms and legs as full and the reflexes as normal except for the left arm which had reduced power. She noted her impression was migraine with resolving symptoms and her plan was to provide pills and for the Claimant to be discharged if she improved but if not she might need to be admitted.
[29] Although she said in evidence that she planned for the Claimant to be seen by a senior colleague, Dr. Osborne did not note that. Under questioning, in her evidence, Dr. Osborne accepted that she could and probably should have written down a differential diagnosis of TIA and for referral to the TIA clinic or that the Claimant should have been seen by a more senior colleague. However she did not accept that she had been negligent.
[30] The Claimant asserted in questioning that Dr. Osborne was negligent herself. I take into account the note made at 07.55 on 27 March 2015, probably by a nurse, that the Claimant was “awaiting senior review”. I consider that this can only have been written because Dr. Osborne decided senior review was necessary and told the staff before she went off shift at 08.00. This was her verbal evidence. I find that Dr. Osborne was not herself negligent because she advised that the Claimant needed senior review. Negligence by the hospital was admitted.
Analysis
[31] I found Dr. Osborne to be a careful, fair, logical, intelligent, straight forwards, well prepared and impressive witness. Her notes were also clear. I accept her recollection was partial in that she did recall the photophobia and did recall the room in which the examination took place (room 4) but otherwise she was relying on her notes. I find from my impression of her as a witness and from the way her notes are set out that her evidence is credible and logical. So for instance where her evidence clashes with the Claimant’s written witness statement and/or the evidence of Mr Eastham, I accept the evidence of Dr. Osborne.
[32] In relation to the Claimant’s evidence set out in her witness statement there are some oddities in it. The first is the mystery doctor who had a conversation with her before the examination by Dr. Osborne. There is no note of this conversation and it is not supported by Mr Eastham. There was a nurse who took her neurological signs but I very much doubt that a nurse would advise on what medical investigations the Claimant was likely to have. Secondly of course she did not come to court to give evidence despite on two previous occasions when a trial was listed asserting through her lawyers that she wanted to come to court to give evidence. Thirdly, although she asserts left facial droop in her witness statement, her pleaded case is that she suffered right facial droop and no application was made to amend the pleaded case either before trial or at trial. The 4th point I take into account is that the evidence in relation to her lack of capacity is not full or properly laid out medical evidence with a part 35 statement. It is in very short treating neurologist letters. In addition her solicitors asserted that she had capacity in the letter before action in 2018. The 5th point is that the witness statement was signed not by the Claimant but by her litigation friend. If the Claimant was able to give this evidence carefully and slowly under careful questioning from her solicitor, then why could she not sign it at least jointly with her litigation friend? Finally, of course she has not been questioned. I do not therefore consider that her witness statement can outweigh the evidence of Dr. Osborne.
[33] In relation to the evidence of Mr Eastham, he was clearly doing his very best and I find him to have been an honest witness. I take into account the trauma that he has been through because of the Claimant’s stroke. It must have been difficult accurately to recall events when the claim was being reduced into written evidence with the solicitor both as to the left or right side of the facial symptoms that he saw before midnight and as to the chronology of the emergence of the left arm symptoms and of course the mysterious left leg symptoms not mentioned to the hospital. I gained the impression that he connected the May stroke to the March events and concluded they must have had the same cause.
[34] Thus my findings of fact set out below will be based on the evidence of Dr. Osborne and where that conflicts with the evidence of the Claimant or Mr Eastham I prefer her evidence.
Like this:
Like Loading...
Related
