PROVING THINGS 243: CLINICAL NEGLIGENCE: THE ACCURACY OF WITNESSES & “STORY CREEP”: GIVING THE DEFENDANT A FIVE STAR REVIEW IS NOT A STRONG BASIS FOR AN ACTION IN NEGLIGENCE

The result of clinical negligence cases sometimes rest on the views of expert witnesses. Sometimes it is the evidence of witnesses with different recollections of events.  On many occasions it is the two issues combined.   In Deakin-Stephenson v Behar & Anor [2024] EWHC 2338 (KB) Dexter Dias KC (sitting as a Deputy High Court Judge) considered the evidence of witnesses in relation to a clinical negligence claim.  He found that there was “story-creep” and that the evidence produced to support the claimant was not an accurate recollection.  At the time same time, however, we can be certain that every organisation concerned with defending the medical (and other) professions will use this case as an example of the importance of making good records.

”  she attempted to reconstruct events in her head, it is likely on the evidence before the court that a false narrative developed. This has been adopted by those close to her and who wish to support her through their ties of loyalty and deep affection.”

WEBINAR ON LAWYERS AND SOCIAL MEDIA

This is the first case I have seen where an on-line review was made which, to a large extent, undermined the claimant’s case. It is one of the issues being considered in the webinar Social media and the personal injury lawyer 2024

1st October 2024

This webinar looks at two things in detail (i) The role of social media in the courts and in evidence in personal injury cases; (ii) The ways in which PI lawyers can use social media as a resource to keep up to date in both law and procedure.  Booking details are available here.

(Links to useful, blogs, social media accounts and other useful online sources will be provided)

• The use of social media in the courts and how it is being deployed as evidence
• Examining the case law relating to how social media impacts upon both liability, damages and credibility
• How LinkedIn destroyed a witness (and could destroy yours).
• Your client’s social media profile
• Twitter could leave your client bitter
• Facebook in the courts
• Social media and credibility
• What can you tell your client about social media?
• A social media strategy for a personal injury lawyer

THE CASE

The claimant brought an action for clinical negligence alleging that, on admission to hospital in 2016, she had continually asked to be referred to a specialist colorectal surgeon and that there had been negligence on the part of the treating doctor.  There were many disputes of fact. The judge considered the evidence of the witnesses in detail. On the whole he did not accept the accounts given by the claimant’s witnesses. He found that there had been “story-creep”.

THE CLAIMANT’S REVIEW OF THE DOCTOR

One of the factors that undermined the claimant’s case was the claimant’s own online review.

1. 1. Upon issuing proceedings on 3 August 2020, and in pleadings and evidence up to and during the trial, Ms Deakin-Stephenson seriously criticised Mr Behar. Yet on 1 January 2017, that is, just over a month after her discharge home from the Hospital, she posted a review on the internet about the treatment she had received from Mr Behar.

“1st January 2017

I was admitted in c&w by ambulance on 2nd November 2015 with severe abdominal pain. While I have no recollection due to amnesia for the following two and half weeks, Mr Behar operated on me twice and literally saved my life from perithinitus and sceptis after suffering from severe divictilitus. Mr Behar and the extra ordinary nursing and medical team who cared for me 24/7 when I was transferred into I the intensive care department after suffering apparently multiple organ failour and being on life support, literally saved my life. My family were able to speak personally to Mr Behar about my illness even when I was on life support. When eventually I came round I remember meeting him (I thought it was the first time I had met him) and he very kindly explained to me over the following days what had happened. While it is still very shocking that I was so very ill, mr Behar did not give up on me at anytime or indeed any of the increasingly nursing and medical staff and the micro biologists and to them all, I thank them from the bottom of my heart for giving me my life again and to be back home recovering with my family for Christmas. Mr Behar, thank you for saving my life and being so unbelievably amazing. To you all at C&W and the NHS you are all amazing, and thank you does not seem to be enough, but it is from the bottom of my heart.“

1. 1. There is then an option to give a star rating in three categories. Ms Deakin-Stephenson awarded Mr Behar as follows:

“Recommend 5 stars

Listen 5 stars

Trust 5 stars”

1. 1. Therefore, the claimant cannot have given Mr Behar a higher rating in terms of trust and listening. She recommended him as highly as she could. It is a strong and contemporaneous indication of her true response to Mr Behar’s treatment. There is no hint that she was badly or negligently treated or forced into surgery that she did not want or consent to. The clear message provided by Ms Deakin-Stephenson’s review of Mr Behar as her surgeon is the opposite.

1. 1. What appears to have happened is that as time went on, the claimant, entirely understandably, reflected time and again about what had happened to her and how she had nearly died. The process evolved from a quest for answers into finding someone to blame. Mr Behar became the chosen target of the claimant’s unhappiness and trauma and the iterative process of visiting and revisiting these profoundly distressing events led to her misremembering her exchanges with Mr Behar in a way that resulted in a narrative that implicated him in serious breaches of professional duty. However, the narrative is inaccurate. It did not reflect what happened at Chelsea and Westminster Hospital between Ms Deakin-Stephenson and Mr Behar in November 2016 as supported by the contemporaneous documentation and the clear probabilities. Over time, and especially given that she initially had virtually no memory of events, the claimant has persuaded herself of a factually false narrative that directs the blame for her deterioration and near-death experience towards Mr Behar. The claimant has come to sincerely believe it, which has greatly deepened her distress.

1. Therefore, without adopting a totalising or inflexible approach, the court generally prefers Mr Behar’s evidence to Ms Deakin-Stephenson’s, emphasising as I do that although this is a sequential setting down of the judgment, the evidential analysis and evaluation was iterative and holistic and I have carefully considered the discrete issues separately and together. No issue is determinative of any other; credibility problems on one issue, while potentially cross-relevant, are not and cannot be determinative of credibility on another issue. Nevertheless, for all the reasons here provided and developed in the issue-by-issue analysis, the court has serious concerns about the accuracy, reliability and inherent probability of the claimant’s account on most of her key criticisms of Mr Behar. The court has found her evidence at vital junctures to be inaccurate, unreliable and improbable. The specific weaknesses of the claimant’s evidence will be identified within the sections to come. This has been an overview of the court’s assessment, fleshed out in greater detail than may be customary because it is so important to all parties and the issues are complex and in places connected.

ASSESSMENT OF THE CLAIMANT’S WITNESSES

The claimant called several supporting witnesses. The judge found that there was evidence that there had been collaboration between the witnesses.

1. 1. Paul Stephenson is the claimant’s former partner, with whom he shares a son. Mr Stephenson works for the Ministry of Defence, having previously served in the Royal Engineers for 27 years. He made a statement dated 7 February 2023. When he began his evidence in chief, he adopted his statement while wishing to make a correction.

1. 1. The correction related to an account he gave in his statement of an event on Saturday 5 November. In his witness statement he states that he saw “Pippa”, that is, Ms Deakin-Stephenson, ask a male doctor for a referral to a colorectal surgeon. Mr Stephenson also spoke to the male doctor and made the same request. However, it is now agreed evidence between the parties that the doctor who attended on the Saturday was Dr Walsh, a female Specialist Registrar. When Mr Stephenson gave evidence in chief, he changed his account and stated that in fact the requests for a colorectal surgeon on the Saturday were made to a female whom he believed to be a doctor. When he was then challenged about his change of account, he stated that he cannot recall whether the doctor he spoke to was a man. Then he said he was “sure it was a she”.

1. 1. This was unimpressive evidence. It had all the hallmarks of a witness trying to tailor his account to assist the claimant rather than respecting the truth. He appeared to be altering his narrative once the evidence revealed that his original account was wrong. As noted, it is significant that Mr Stephenson’s error in his original witness statement is mirrored by the identical error about the gender of the doctor in Ms Deakin-Stephenson’s original evidence. This is not the only evidence of the collusion between Mr Stephenson and Ms Deakin-Stephenson and then between Mr Stephenson and Mrs Deakin (senior), the claimant’s mother. There are strikingly similar spelling errors in both sets of statements:

Example 1

Ms Deakin-Stephenson

“Everything Mr Behar had said appeared very contractionary“

Mr Stephenson:

“None of it made any sense to me and appeared to be contractionary to common sense”

Example 2

Mr Stephenson:

“it was defiantly understood by us, that Pippa would remain an NHS patient”

Mrs Deakin:

“I don’t recall who told us this, but it was defiantly not Mr Behar”

1. These spelling errors are so distinctive that they cannot sensibly be explained except through consultation and collaboration between the claimants’ witnesses. In both instances, Mr Stephenson was involved. I cannot accept Mr Stephenson’s answer that the error about “defiantly” was just “a coincidence”. As unsatisfactory is the account that “contractionary” was a simple spelling error, meaning that he and Ms Deakin-Stephenson made the same highly unusual error independently.

SIGNIFICANT FACTUAL COORDINATION AMONG THE CLAIMANT’S FAMILY MEMBERS

1. 1. I have found that there was significant factual coordination among the claimant’s family members during the settling of their witness statements. This is understandable. It was powerfully summarised in evidence by the claimant’s mother:

“I was appalled by the state of her body when she was discharged as she had an open wound right down her body, she was so traumatised as we were all were, as a family we were so traumatised by what had gone on and sitting in ICU, we could not understand what had happened.”

1. 1. This is the context to view the claim that these statements were the product of independent recollection and the statements were written by each witness “on my own” (variously formulated). It is undermined by telling clues on a close analysis of the statements. By way of further example, when each of the claimant’s three witnesses recalled the night of 8 November 2016 (Day 7), they all independently claimed to recall precisely the same detail. It should be remembered that these statements were all finalised in February 2023, that is, over six years after the night in question:

Mrs Ingledow: “I invited [Mr Stephenson] and [his son] … for supper to have roast chicken with me and my parents.”

Mr Stephenson: “Pippa called on facetime while we were eating Roast Chicken.”

Mrs Deakin: “we were all having supper in the kitchen. We were eating roast chicken.”

1. 1. The inconsequential and irrelevant detail of the roast chicken, replicated in all statements, points to an element of coordination and collusion, especially taken together with other otherwise inexplicable similarities such as the mentioned common spelling errors (“defiantly”, “contractionary”). Another example of unaccountable similarity comes from the comments in the statements of Mrs Deakin and Mr Stephenson about what BUPA had been requesting in conversations that these two witnesses were not party to. This is significant to the issue of whether Mr Behar initiated the transfer to private care and whether once the claimant did transfer to the Chelsea Wing it was under the NHS or private medical treatment. The claimant’s case, supported by her witnesses, is that BUPA was only paying for accommodation (“hotel”) fees.

Mrs Deakin: “My daughter was told to contact BUPA who wanted verification from the admitting surgeon as to what operation Pippa was to have”

Mr Stephenson: “apparently BUPA wanted more information from Mr Behar and asked Pippa to find out what was the exact treatment plan for her from Mr Behar was (sic), and what surgery he was planning to perform.”

1. 1. If these witnesses were not party to the conversations, it is difficult to understand why it was necessary to include the BUPA conversation that did not involve them in their statements. This suggests, as does other identified evidence such as the spelling errors, that there has been coordination in the preparation of statements that undermines the claim that they were made independently. They claim to be “independently” reporting six years later a conversation they were not party to and that did little to advance their testimony. Mrs Deakin said in cross-examination that she could not recall the conversation at all. Mr Stephenson accepted that he had no idea why BUPA would need to know about the proposed “treatment” (surgical procedure) if BUPA was not paying. In similar vein, when providing his narrative in his statement, Mr Stephenson goes out of his way to state:

“Pippa and Joanna had no knowledge of the Chelsea Wing which they discovered much later was apparently a private wing in the main hospital …”

1. 1. Mr Stephenson was not present at the Hospital when the alleged conversations with Mr Behar about private health insurance took place. This provision of information about the state of mind of Ms Deakin-Stephenson and Mrs Ingledow when Mr Stephenson was not present relating to a conversation he was not party to again points to a degree of coordination in the construction of the witness statements. In her evidence to the court Ms Deakin-Stephenson stated that she knew no colorectal surgeons. In his statement, Mr Stephenson provided evidence that capable of supporting her assertion when he stated:

“she had never had any previous problems with her colon.”

1. 1. This is not factually true. The claimant’s medical records show that she was diagnosed as suffering with diverticular disease in 2011, having been seen by Mr Payne, a colorectal surgeon, between 2005 and 2011; she saw Mr Akle another colorectal surgeon in 2008, and he organised a colonoscopy in September 2008; in 2013, she saw two further colorectal surgeons, Mr Cohen and Mr Crosbie. Yet as Mr Stephenson documents in his witness statement, he has known the claimant since 2005 and their son was born in May 2006. He was in a relationship with her, which ended in a way he explained in his witness statement:

“Due to the medical situation that developed following [her] November 2016 admission to hospital, Pippa withdrew from our relationship.”

1. 1. It is hard to understand how Mr Stephenson, in such a close relationship with the claimant at material times and sharing a son, could assert her lack of previous colon problems, unless it is to provide support for her case.

1. 1. Humans look for explanations when catastrophic things happen. What is likely to have happened is that a common narrative evolved within the claimant’s family that in looking to explain the disastrous consequences suffered by Ms Deakin-Stephenson, placed the blame on Mr Behar. This is a variation of “story-creep” identified by Peter Jackson J in C, M and F. It is a variation because Ms Deakin-Stephenson appears to have lost her memory of events of her hospital admission. Then as it returned and she attempted to reconstruct events in her head, it is likely on the evidence before the court that a false narrative developed. This has been adopted by those close to her and who wish to support her through their ties of loyalty and deep affection. The submission on behalf of Mr Behar has force: the weight of evidence is not necessarily judged by “head count”.

1. Ms Deakin-Stephenson’s desire to account for what happened to her and her near-death experience is understandable. But the reconstructed and coordinated account that developed in important respects did not accurately reflect events.