PROVING THINGS 233: ASSESSING EVIDENCE AFTER 14 YEARS: THE CRUEL CONCEPT OF CAUSATION IN MEDICAL NEGLIGENCE

This blog has looked many times at issues relating to witness evidence and the judicial approach when hearing evidence of matters that happened a considerable time before trial.  The difficulties are made clear in the judgment of HHJ Emma Kelly in  Richins v Birmingham Women’s and Children’s NHS Foundation Trust [2022] EWHC 847 (QB).  This is a tragic case and one where the claimant’s evidence was found to be honest and credible.  Breaches of duty were established, causation was not.

“The need to establish causation on the balance of probabilities can be a cruel concept in cases of medical negligence. Loss of a chance of something that was not the probable outcome will not suffice.”

(There is a webinar on Witness Evidence in Clinical Negligence Cases, which considers the approach the courts take to witnesses in this context. It is available on demand until the 22nd September 2022. Booking details are available here).

THE CASE

The claimant brought an action for damages arising out the stillbirth of her son on the 7th July 2008.  Clearly this involved the judge considering evidence of matters that took place 14 years before trial.

THE CLAIMANT’S EVIDENCE

The judge considered the difficulties of assessing evidence after this length of time.  In particular the difficulties caused by the fact that the documentary evidence was not always reliable.

    1. In my judgment the passage of time in this case has affected the ability of all the lay witnesses to now recollect the detailed chronology of events of 6th and 7th July 2008 with accuracy. I take the view that all the lay witnesses are nonetheless trying to assist the court and are genuine in their belief that their account is accurate. It will however be apparent from my observations that follow that there are examples of inconsistencies throughout the evidence of all the lay witnesses.
    1. I bear in mind the guidance in Gestmin that the court must avoid the error of assuming that stronger and more vivid feelings and/or confidence of recollection make it more likely a recollection is accurate. Gestmin suggested that factual findings be based “on inferences drawn from the documentary evidence and known or probable facts.” The Court is assisted in this case by contemporaneous documents (ie the medical records) and has expert evidence, particularly from the obstetricians, to assist with the determination of probable facts. I adopt the approach suggested in HXC that Court take the medical records as a starting point and that such entries are likely to be a correct and accurate record. However, I must bear in mind any other evidence that establishes that the medical records are inaccurate. For the reasons I have already touched upon, the medical records in this case are not without difficulty given the known inaccuracies in respect of the entry made by Midwife Hemming following the 1800 hrs observation and the entry made by Midwife Morton after the event in the early hours of 7th July. I therefore approach the reliability of the two key entries in the medical entries with caution.
  1. As the Defendant rightly acknowledges, notwithstanding the highly emotive subject matter, the Claimant was composed and dignified throughout her evidence and made for an impressive witness. I bear in mind that the Claimant has relived the events multiple times since 2008 both in her own mind when dealing with the agony of the outcome, but also when discussing with friends and family and when pursuing her complaints with the Defendant, NMC and in her interactions with her various solicitors. That gives rise to the risk that her recollection has been corrupted as it has been repeated over time. The most contemporaneous documentary record of the Claimant’s account appears in a letter of complaint she sent to the Defendant, date stamped received on 2nd December 2008 (“the 2008 account.”

THE EVIDENCE ADDUCED BY THE DEFENDANT

The defendant’s evidence had many of the characteristic issues in that some of the staff could not remember the incident.

  1. Midwife Morton’s witness statement is a carefully drafted document. It provides a detailed description as to her involvement with the Claimant but the use of language demonstrates that much of the account is based on the midwife’s usual working practices as opposed to her actual recollection. For example, “I would have looked at the drugs chart….I would have examined the Claimant in accordance with my usual practice…I would have examined her by starting at the top of her stomach…In order for me to reach this diagnosis the Claimant must have told me…”

THE JUDGE’S FINDINGS ON BREACH OF DUTY

The judge found that there were breaches of duty. However the claimant failed to establish that these breaches would have made any difference to the tragic outcome.

THE CLAIMANT’S FAILURE TO PROVE CAUSATION

The claimant’ case failed, however, on the issue of causation.
    1. The Claimant asks the court to apply Claimant Benevolence to the reconstruction of the hypothetical. However, I am not persuaded such a concept can provide a bridge to causation in the face of the Claimant’s own expert evidence and that of Professor Tuffnell. Even if one accepted that the evidence should be interpreted in a way benevolent to the Claimant so as to reach the conclusion that the Claimant would have been presenting as being increasingly unwell, hypertensives would have been administered but not have worked, proteinuria would have been present along with CTG abnormalities, the difficulty the Claimant faces is that her own oral expert evidence is that this leads to a conclusion that there may have been a decision to deliver. The hard, medical evidence does not demonstrate that it was probable as opposed to possible that Kyron would have been safely delivered before the fatal abruption at 0645 hrs. It is one thing to apply a benevolent approach to the existence of signs and symptoms but another to use it to construct the planks of causation when not supported by the expert evidence.
Conclusion
  1. Nothing can detract from the fact that this is a tragic case with devastating consequences for the Claimant, Kyron, her family and all involved. I anticipate that no one involved in this case has anything other than the utmost sympathy and respect for the Claimant. She has pursued her case with dignity and, as evidenced by the findings of fact, was a credible and truthful witness. She is right to be aggrieved at the negligent standard of care afforded to her by the Defendant over the evening of the 6th and into the 7th July 2008. However, the sad reality is that, even if the standard of care had not been negligent, the probability is that Kyron would not have been safely delivered before the abruption. The need to establish causation on the balance of probabilities can be a cruel concept in cases of medical negligence. Loss of a chance of something that was not the probable outcome will not suffice. I appreciate that this leaves the Claimant with the knowledge that there was a chance, even if not a probability, that Kyron would have been safely delivered. I do not underestimate the difficulty of being left with that unknown. I hope that the Claimant can take some solace in the formal recognition that the care she received at that time was not that which it should have been.