WITNESS EVIDENCE, CLINICAL NEGLIGENCE AND CLINICAL NOTES: A CASE IN POINT

The judgment of Mr Justice Jay in FB -v- Rana & Princes Alexandra Hospital NHS Trust [2015] EWHC 1536 contains another interesting consideration of the value of witness evidence and contemporary records in a clinical negligence case.  I was recently lecturing to a group of A&E doctors about the importance of medical notes and issues with witness evidence. I will ensure that a copy of this case is sent to them all. However it provides another example of how a judge considers issues of credibility. It is also another example of the approach a court takes when some of the witnesses state, honestly, they have no recollection of the events themselves.

THE CASE

The claimant was 13 months old when he developed pneumococcal meningitis combined with other features, and she sustained irreversible brain damage.  He brought an action against an out of hours GP and the hospital alleging that there had been a failure to carry out an adequate examination.  The primary issues were the state of the child when he was examined and whether the doctors should have asked more details to seek out salient parts of the medical history.

THE ISSUES

This was another case where the issue of liability rested primarily on the view that the judge took in relation to the lay evidence.  The judge stated “that the resolution of the breach of duty issues ….must depend, primarily if not wholly, on my assessment of all the lay evidence in the case, viewed in context and against the contemporaneous records.”

THE JUDGE’S APPROACH

“The central, albeit not sole, factual issue for me to resolve is how FB presented to Dr Rana, and later to Dr Rushd, during the course of their consultations. In order to reach sound conclusions about that, it is axiomatic that I must consider all the available evidence, including the lay evidence adduced by FB, the evidence of Dr Rana and Dr Rushd (strictly speaking lay evidence too, although inevitably coloured by their professional experience and expertise), and the evidence from the experts in infectious diseases. I do not start from the position that the weight to be given to any particular category of evidence should be greater than another; ultimately, that must depend on my evaluation of its reliability and robustness when calibrated against all other evidence.”

THE DEFENDANTS’ PROBLEM

The first defendant GP had a problem common with many professional defendants in these circumstances. He had no actual recollection of the events. The judge noted:-

“60. Dr Rana has no independent recollection of these events. It would be wholly surprising if he had. Accordingly, Dr Rana must rely on his contemporaneous notes, and his standard practice.”

The Second Defendant had a similar problem with the relevant doctor who saw the claimant.

“Like Dr Rana, Dr Rushd has no independent recollection of these events, and is compelled to draw inferences from her contemporaneous notes judged against her recollection of her standard practice at the time.

THE JUDGE’S ASSESSMENT OF THE WITNESSES CALLED ON BEHALF OF THE CLAIMANT

Findings of Fact on FB’s Presentation at 21:40 on 28th September and 05:45 on 29th September

109. This is the appropriate stage to set out my core factual conclusions in relation to the disputed areas. I have not yet set out the remainder of the expert evidence the court received. I have taken it into account in resolving the matters which require judicial resolution, but in my view that evidence is far more relevant to breach of duty questions than to my fact-finding.

110. My approach is to assess the lay evidence against the contextual backdrop of the expert evidence set out in the preceding section of my judgment. Neither the lay nor the expert evidence may determine the outcome; each must be weighed in the balance and seen “in the round”. For the avoidance of any doubt, I proceed on the basis that it would be open to me to conclude that FB appeared more ill than the expert evidence, taken in isolation, would indicate.

111. For different reasons, I was not impressed by Paul or Michelle’s evidence. Paul’s evidence was vague and prone to hyperbole, and cannot be relied on unless supported elsewhere by evidence I could accept. Michelle was unduly partisan and in two respects wholly implausible. I do not accept her account of what happened when she took WAC and FB to Dr Ashar’s surgery on that Monday afternoon. She may have been concerned about FB’s condition, but as her first reaction to what she was seeing she had absolutely no reason to ascertain whether FB had been in that condition throughout that weekend. We know from WAC’s evidence that she had not been. Further, I do not accept Michelle’s evidence that there had been little subsequent discussion between her and her daughter regarding the circumstances of this traumatic weekend which has resulted in a complaint to the Second Defendant and protracted litigation. On other matters of credibility, I do not accept Michelle’s explanation for the error in her statement regarding the timing of the “bile sick”, and I further note that her recollection is incorrect about Dr Rana’s advice – he did not tell WAC to sponge FB down.

112. I should make clear that although Paul’s and Michelle’s evidence cannot really add to FB’s case, it does not subtract much from it, save to the extent that it impinges on aspects of WAC’s evidence.

113. WAC’s evidence has been harder to gauge. On many occasions, she said that she did not recall what happened when a dishonest witness might well have embroidered a self-serving account. This was undoubtedly an extremely distressing series of events which she must have replayed in her recollection on countless occasions. In one sense, it might be said that this process has served to reinforce the strength of her remembrances, but ultimately I have concluded that WAC, although a basically honest witness, cannot be regarded as a particularly reliable historian. She was only 19 when these events took place, and by the time she saw Dr Rana, and even more so by the time she entered the Second Defendant’s hospital, she was sleep-deprived, distressed, and at the end of her tether. Further, it would be difficult for anyone to exclude from account her subsequent knowledge of what occurred, and in my judgment WAC has unwittingly allowed hindsight to colour the evidence she has given. Moreover, it is probable that subsequent discussions with her mother have impacted to some extent on the independence and objectivity of her testimony. For example, WAC told me that she did a glass test before the first telephone call to outof-hours on 27th September, and was concerned about the result. No mention of this concern appears in any of the transcripts, and we know from the agreed expert evidence that by this stage FB was showing no signs of meningitis.

114. The purpose of WAC’s second witness statement was “to emphasise further how ill FB was”. I have no doubt but that FB was very ill by the time she was seen by Dr Ashar (although not apparently so ill as to cause this GP to make a ‘999’ call), and that her condition was immediately apparent to anyone with a modicum of training and experience. On the other hand, I conclude that there was a significant deterioration in FB’s condition after 09:00 on Monday 29th September, by which time the experts are agreed that the blood-brain barrier was breached. Before then, the overall trend was one of deterioration, but it was less stark and patent, and FB’s condition fluctuated, both in reaction to the paracetemol and nurofen, and more generally.

115. More specifically, I do not accept WAC’s evidence that FB’s vomit was a “browny, black colour”. There was some discussion between Professor Kroll and Dr Ninis as to the plausibility of this, and here, as elsewhere, I prefer Dr Ninis’ evidence. I note Dr de Marco’s observation that this is a “difficult issue”, and the gist of his evidence appeared to be that factual findings would need to be made by the court as to what history was actually given. I find as a fact that FB probably vomited three times over the Saturday/Sunday night; that there was some evidence of vomit which appeared to be bilious or greenish in colour; and that the last time FB vomited, which was at 05:00, it was yellow in colour. Had FB been vomiting as much as WAC claims, it is surprising that she stopped altogether, and also somewhat difficult to understand why she was not dehydrated. We know that there is no evidence of abdominal pathology. In my judgment, as with the evidence concerning the rash (see paragraph 114 above), WAC’s evidence contains significant elements of retrospective reconstruction and exaggeration, most of which I fully accept may be inadvertent.

THE GP’S NOTE OF THE EXAMINATION

The claimant criticised of the note that the GP took immediately after the examination. This criticism was not accepted by the judge.

.” I should make clear that I do not accept Ms Whipple’s submission that, because Dr Rana’s note-taking may appear “random”, it is not possible to draw coherent inferences about the history he was given or the examination he conducted. It is quite true that Dr Rana has noted some positive findings (cf. his evidence that he notes only negative findings, or findings that are contextually abnormal) but in my judgment it is wrong to subject these quite scanty notes to overly rigorous, logical scrutiny. They were written after the consultation had concluded, and in Dr Rana’s mind were no doubt intended to pick out the key, salient features of a case he believed to be unremarkable. As Dr Rana told me, he had to write something down, and over-parsing or over-analysing the position does not assist. I will be dealing with this point later, but in my view a barely adequate, or even inadequate, note does not necessarily march arm-in-arm with a barely adequate, or inadequate, examination”

THE NOTE TAKEN BY THE HOSPITAL DOCTOR

There were similar considerations in relation to the note taken by the doctor at the hospital.

“There are two aspects of that big picture which in my judgment are absolutely central to this case. The first aspect is that it is clear to me that the parents did not tell Dr Rushd that FB had recently suffered some sort of worrying event when her eyes rolled in an uncoordinated fashion. Further, and this is the counterpart of the same issue, Dr Rushd did not elicit this part of the history, notwithstanding that it was the immediate precipitant to FB being taken to A&E. Had Dr Rushd been given this information, or had she elicited it, we would see a note to that effect. The second aspect is that Dr Rushd has noted that FB looked well, was alert and active, and responsive to her surroundings. Dr Rushd would not have written her notes in this manner had it not reflected her genuinely held, professional view.”

FACTUAL CONCLUSIONS ON THE EVIDENCE OF THE GP

. “154. The first issue concerns the adequacy of Dr Rana’s notes. The experts are agreed that a sound note must contain all relevant findings, and the issue here is whether that standard has been attained. In my judgment, saliency must be judged ex post (because the notes are written after the event) and in the light of the GP’s assessment of what is relevant in the context of the examination that has just been undertaken. I think that everyone must be agreed that this is an exiguous note, and at best it lies at the margin of acceptability. Upon careful reflection, I have concluded that it is an inadequate note as regards the history. Making due allowance for time of night and the fact that Dr Rana might well have had other patients to see, I believe that it was sub-standard practice to include nothing of the history as given by the parents at that time, as opposed to the history given to Dr Rana by the triage nurse.

155. However, an inadequate note does not necessarily betoken an inadequate examination, and I am in any event just about satisfied that Dr Rana’s note is adequate as regards his examination of FB. In my view, the inadequacy of the notes advances FB’s case some short distance, but ultimately I have to reach conclusions about Dr Rana and the overall qualities of his practice. I should make explicit that in reaching those conclusions I have taken into account what I think about his notes, notwithstanding that these conclusions are set out in an earlier section of this judgment.

156. The second issue concerns the quality of Dr Rana’s history taking, and whether he elicited an adequate history from the parents. On analysis, however, I do not believe that this arises as a discrete issue in relation to Dr Rana. At paragraph 122 above I have set out my conclusions as to what Dr Rana is likely to have been told. This was an unremarkable history and one which was consistent with the subsequent findings on examination. It was not incumbent on Dr Rana to inquire further. He was witnessing a child who did not appear particularly unwell – in other words, whose presentation was entirely consistent with the presence of a viral infection. Whatever the index of suspicion, it was not mandatory to assume that there might have been some occult illness: a GP in these circumstances could reasonably base his impression or working diagnosis on his examination coupled with what he was told.

157. It follows, in my judgment, that Dr Rana took an adequate history and undertook an adequate examination of FB. Her case against Dr Rana must fail.

THE POSITION OF THE HOSPITAL DOCTOR

160. Since the completion of the oral arguments in this case, I have thought very carefully indeed about Dr Rushd and her evidence, and have come to the following conclusions. In my judgment, Dr Rushd is an extremely able doctor whose mouth works almost as fast as her mind. However, she is not fairly to be criticised for that. Ms Whipple suggested that she “gabbled”, but in my view that is to underestimate the quality of both her intellect and her medical practice. Ms Whipple also said that Dr Rushd came across as self-confident: I would agree, but self-confidence is not the same as arrogance. Dr Rushd was far too slow to accept what she would have done had she been told about the eyes rolling incident, or had elicited it, but I put that down to inexperience with the forensic process and understandable defensiveness, rather than to anything more concerning.

161. The conclusion that Dr Rushd carried out a thorough examination and wrote up an extremely thorough note cannot be avoided. Her initial impression was that this looked like a well child, but she did not stop there. During the course of what must have been quite a lengthy examination, covering the ear, nose and throat, the abdomen, the chest, and neurology, Dr Rushd must have been watching FB very closely and have had more than a sufficient basis to write that she was alert, active and responsive to her surroundings, along with everything else. I do not accept the parents’ evidence that FB was obviously listless and lethargic throughout the examination. True, they were worried about her, and she was out of sorts, but she was not presenting as she did that afternoon when Dr Ashar saw her. It is clear that Dr Rushd was fully satisfied as to FB’s level of hydration and it was entirely reasonable for her to conclude that although fluids were being taken off a spoon by way of sipping, the quantities were sufficient. The urine output and the clinical findings fully supported those conclusions

RELATED POSTS: CLINICAL NEGLIGENCE AND WITNESS EVIDENCE

RELATED POSTS ON WITNESS CREDIBILITY

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6.  Which witness is going to be believed? A High Court case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. Witness statements and witness credibility: getting back to basics

9. Witness credibility: what factors does the Court look at?

10. That “difficult second statement”: its hardly ever going to be a hit.

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