WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS: THE RECORDS MAY NOT BE RIGHT

This blog has looked, many times, at the issue of witness credibility and the various criteria that judges use when assessing evidence. This issue was to the fore in the Court of Appeal judgment yesterday in Synclair -v- East Lancashire Hospital NHS Trust [2015] EWCA Civ 1283.

“I would commend 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.”

KEY POINTS

  • A judge was entitled to prefer the witness evidence of the claimant against the medical records.
  • The doctor who made the record was not called. There was no explanation for this.

THE CASE

  • The claimant brought an action for clinical negligence.
  • The issue related to whether the claimant told the doctor that his stoma had changed in colour.
  • The medical notes recorded “Stoma normal colour”.
  • The trial judge accepted the claimant’s evidence and did not accept the correctness of the medical notes. The claimant therefore succeeded.
  • The defendant appealed on the grounds that the judge should have preferred the evidence in the medical notes.

PRACTICE POINTS

  • In many cases contemporary records are normally decisive. However this case illustrates the importance of careful checking.
  • Initially the defendant doctor asserted that he had written the note. It was a discrepancy in the handwriting that caused this to be challenged.
  • The defendant then ran a risk in not calling the doctor who made the note and offering no explanation for this absence.
THE “CLASSICAL LEARNING ON THE NATURE OF JUDICIAL FACT-FINDING”
  1. Both Mr Giles Colin for the Trust and Mr Darryl Allen QC for the Claimant reminded us of some of the classical learning on the nature of the judicial fact-finding function. We were shown, in chronological order: the well-known remarks of Lord Pearce in his dissenting speech in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at p 431; the guidance given by Lord Goff of Chieveley giving the opinion of the Judicial Committee of the Privy Council in Grace Shipping v Sharp & Co [1987] 1 Lloyd’s Rep 207 at 215-6, in particular founding upon his own judgment in the earlier decision of the Court of Appeal in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 when he said, at page 57:-
“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.”
In Grace Shipping Lord Goff noted that his earlier observation was, in their Lordships’ opinion “equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence.” We were reminded too that in “The Business of Judging”, Oxford, 2000, Lord Bingham of Cornhill observed that:-
“In many cases, letters or minutes written well before there was any breath of dispute between parties may throw a very clear light on their knowledge and intentions at a particular time.”
The essential thrust of this learning is the unsurprising proposition that when assessing the evidence of witnesses about what they said, or what was said to them, or what they saw or heard, it is essential to test their veracity or reliability by reference to the objective facts proved independently of their testimony, in particular by reference to contemporary documentary evidence.
THE JUDGE’S FINDINGS IN THE CURRENT CASE
  • The doctor (understandably) had no recollection of events.
  • However,  in the current case there was no evidence of the circumstances in which the note was made. The note was not made by the doctor in question but by a second doctor.
  • That second doctor did not give evidence. It was not clear whether he was present when the claimant was examined, it was unclear when the note was prepared.
THE APPROPRIATE APPROACH TO CONTEMPORARY DOCUMENTS
  1. However it 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. I would commend 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.”
Dr Johnson, a GP, had made his own note of a consultation at an out of hours walk-in centre at a hospital. After a careful evaluation of all the evidence in the case, the judge found that Dr Johnson’s oral account in evidence, based on his contemporaneous note, was reliable. In Welch v Waterworth [2015] EWCA Civ 11 a surgeon was unsuccessful in persuading the court that his own notes of a surgical procedure which he had performed, one a manuscript note written very shortly after the operation and another a typewritten note made later in the day at home, did not accurately record the order in which he had carried out the constituent parts of the relevant procedure.
FACT FINDING IN THE CURRENT CASE
  1. In many cases Mr Colin’s points concerning the inherent reliability of the clinical notes will no doubt carry the day. However here they are less persuasive because there is so much uncertainty concerning the circumstances in which the critical note was made. In his first witness statement Mr Zafar treated the note of the 08.10 ward round as his own, distinguishing it from the note made on the Claimant’s readmission on 30 August when he again saw him but did not write the note recording the observations. The provenance of the 08.10 note was then challenged in correspondence, it appearing that the handwriting of the 08.10 note was the same as that of a Dr Dal Bianco who had apparently compiled other notes relating to the Claimant. This led to the assertion by the Trust that the note had indeed been written by Dr Dal Bianco, and the Trust sought and obtained permission to serve a witness statement from him. No such witness statement was served and Dr Dal Bianco was not called to give evidence. No explanation was given of the failure to proffer evidence from Dr Dal Bianco. The note itself contains, after the name “ZAFAR” and an acronym which apparently denotes either Surgical or Specialist Registrar, a second name, which can be identified as Dal Bianco if you know that that is what it is, followed by the acronym FYI denoting Foundation Year One, i.e. a doctor in training. Mr Zafar has no independent recollection whatever of this ward round and his assertion that he was accompanied by Dr Dal Bianco derives solely from the circumstance that the note apparently indicates that Dr Dal Bianco was present. The Claimant for his part was absolutely adamant that Mr Zafar was unaccompanied, and he is likely to have a clear recollection of this significant meeting and event in his life.
  2. In the upshot there is no evidence other than the impugned note itself to support the invited inference that Dr Dal Bianco was present during Mr Zafar’s conversation with and examination of the Claimant at 08.10. Later that morning as the judge records the Claimant was discharged, and there is a further untimed note after the 08.10 note recording that the patient had been comfortable throughout the morning and noting other matters immediately concerned with his discharge. It is a fair inference therefore that Dr Dal Bianco wrote the note concerning the 08.10 ward round before the Claimant was discharged, and indeed it may even be a fair inference that the note was written shortly after 08.10. To conclude however that it was written at 08.10 by Dr Dal Bianco at the Claimant’s bedside with Mr Zafar also present would involve rejection of the Claimant’s clear evidence that Mr Zafar was alone. The judge made no such finding.
  3. There is no evidence as to Dr Dal Bianco’s gender or his/her mother tongue. For ease of exposition I will hereafter assume that Dr Dal Bianco is male. There is no suggestion that Mr Zafar dictated the note to Dr Dal Bianco or that he told him what to write down. There is also no suggestion that Mr Zafar checked the accuracy of the note at any time. It was therefore a note made by Dr Dal Bianco alone, the content of which it must be assumed was decided upon by him and which reflected his note-keeping practice. There was no evidence as to his usual practice concerning note keeping.
  4. Mr Zafar does not and cannot challenge the Claimant’s assertion that he drew to his attention the colour of his stoma. It was however the Trust’s pleaded case that if the Claimant’s stoma was dark in colour, that could be related to bruising. Mr Zafar did say in evidence that if he had observed bruising, that would have been recorded in the note. That evidence however bears little weight. Mr Zafar had no input to the note. On the basis of the evidence it was Dr Dal Bianco’s decision how to reflect in the note any observations made by Mr Zafar.
  5. The more I have considered this issue the more likely it has seemed to me that there is in fact no necessary inconsistency between the exchange as the Claimant recalls it and the record in the note. If Mr Zafar had indeed said that the slightly darker appearance of the stoma was due to bruising, rather than to any inherent problem with the blood supply to it, and reassured the Claimant that there was nothing to worry about, it seems to me that Dr Dal Bianco could well have interpreted that, assuming that he was present, as meaning that the appearance including the colour of the stoma was normal, in that it was what was ordinarily to be expected in the immediately post-operative condition. However the judge did not approach it in this way, and so I will leave that speculation on one side, noting only that the lack of evidence concerning the precise circumstances in which the note came to be made or of Dr Dal Bianco’s note-keeping practice serves at the very least to underscore the potential for misunderstanding, or for differences in the nuance of interpretation as between him and Mr Zafar.
  6. What one can I think infer is that the fact that the colour of the stoma is mentioned in the note is indicative that it was a topic which was raised for consideration in the discussion between the Claimant and Mr Zafar. I say that because it was the evidence of Mr Scott that in the absence of a remark as to its colour in a note of the ward round conducted by him the previous day, it should be assumed that the colour of the stoma was normal. It can perhaps be assumed that the note taking practice of the medical team was at least in that respect consistent.
  7. I turn to the surrounding clinical notes. Here the thrust of Mr Colin’s point was to the effect that the surrounding notes support the record in the critical note that the Claimant was “well” and are not supportive of the notion that at 08.10 the Claimant was both in pain or discomfort and feeling nauseous. The first point to make is that the judge had this argument well in mind, specifically referring at [43] to the EWS Observation Score and Pain Assessment Chart recordings at 08.25. The judge does not mention the notes immediately following the critical note, to which I referred at paragraph 16 above, which records “patient comfortable throughout morning”. I would put little weight on that part of the note. On the Claimant’s case he had been told at 08.10 that he was going home, indeed he had been told that the day before, and he had been reassured concerning the colour of his stoma. The pain and nausea was not such, as he put it in his evidence, that he was “about to die”. His evidence continued:-
“Q. You are saying that in answer to Mr Zafar’s note ‘Patient well’ that you were in pain and in discomfort?
A. Yes.
Q. But we have a nursing note which says that you were comfortable throughout the morning?
A. I was obviously about to go home. She might have asked or what have you ‘Are you okay?’ and I probably might have said ‘Yes, I’m not too bad’ and she’s put it down as ‘Patient comfortable.’
That explanation has the ring of truth about it, as did his explanation for his noted refusal “to take home medications”. As the Claimant explained, it was his experience that discharge from hospital could be delayed for several hours awaiting the preparation of the package of medication with which one is to be discharged. Since his brother-in-law worked at the hospital, it was obviously preferable for him to collect the medication when it was ready rather than for the Claimant to await its uncertain arrival. This is a commonplace experience. I do not think that Mr Colin ultimately suggested that the Claimant’s refusal to await the package of medication was indicative of a lack of discomfort.
  1. In any event, as Mr Allen pointed out, the evidence concerning the Claimant’s prior need for pain relieving medication is not supportive of the notion that by 08.10 on 27 August he was free from discomfort. At about 22.00 on 26 August the Claimant was given Diclofenac, a strong analgesic. There is no clinical note to this effect, but it emerges from his prescription chart. A crossed out entry on the same chart could indicate that at that time he was offered but refused Codeine, a stronger analgesic, which is what is documented to have occurred at 01.00 on 27 August. He explained why he declined Codeine. He was already feeling sick and certain tablets, including Codeine, made him feel more sick. The significance is not that he declined Codeine but that he was offered it. He was at 01.00 given Cyclizine for nausea and peppermint cordial for windy pain. At about 06.00 on 27 August he was given Paracetamol, an analgesic.
  2. Against that background it seems to me unlikely that the Claimant told Mr Zafar at 08.10 that he was well. The Claimant remembered Mr Zafar asking him if he was alright, although I am not sure that he gave evidence that he could recall his response. He was however adamant that he did not respond that he was well, and furthermore said that that was not in any event one of his expressions. He thought he would have said “well I don’t feel so good”. The judge made no finding as to what was his actual response, but did make a finding to the effect that he was not in fact well. It had of course already been decided that he would be going home that day. The note of Mr Scott’s ward round at 08.22 the previous day concludes “home tomorrow”. Obviously the doctors thought that the Claimant was well enough to go home. Obviously the Claimant did not in fact say anything which caused them to alter that opinion. Bearing in mind that the note was written, possibly after 08.10, by Dr Dal Bianco, in the context of a settled and unquestioned decision that the patient should be discharged and sent home, I do not consider that the fact that the note records “patient well” carries the debate very much further. The judge had the Claimant’s own evidence as to how he felt. The judge also had unchallenged evidence from Mrs Synclair that on the way home in the car he told her that he thought his temperature felt a bit high, that he was in some pain, and that he was concerned about the colour of the stoma about which he had had a conversation with Mr Zafar that morning. I will discuss in a moment the impact on the reliability of the Claimant’s evidence that he had allegedly made earlier inconsistent statements. Mr Colin suggested that the judge was overborne by the evidence of the Claimant and his wife. That is a difficult submission to sustain having elected not to challenge Mrs Synclair’s evidence. The enigmatic note “Patient well” is a flimsy basis upon which to challenge the conclusion that a post-operative patient who had received the medication which this Claimant had taken over the previous ten hours was neither “well” nor feeling “well”. He was of course thought well enough to discharge, but that is a different point. Although the judge made no finding, and I think could not reliably have done so on the evidence, my own surmise, for what it is worth, on the basis of the totality of the evidence, is that the Claimant probably gave a stoical response to Mr Zafar’s enquiry which, whatever it was, was not understood by Mr Zafar to indicate that he was not well enough to be discharged. How his response was interpreted by Dr Dal Bianco, or how Mr Zafar’s report of it to Dr Dal Bianco was interpreted by Dr Dal Bianco, and how Dr Dal Bianco chose to record it, is another matter again. Subject to the next point however, the judge’s finding that the Claimant was not in fact “well” at 08.10 hours seems to me not just within the bounds of reasonable decision-making but in fact unassailable.
  3. Mr Colin’s last point, although of course they must all be considered together, as fact-finding is a single compendious exercise – see per Lord Pearce in Onassis at p.431 – concerns the alleged previous inconsistent statements of the Claimant. On 20 September 2011 the Claimant had a consultation with Mr Paul Carter, a consultant general and colorectal surgeon, who in due course gave expert evidence on his behalf at trial. Mr Carter prepared a Condition and Prognosis Report dated 7 November 2011 at the request of the Claimant’s solicitors, Messrs Stephensons, who are experienced and respected in the clinical negligence field. In that report he noted that “on 20 August 2009 (an obvious error for 26 August) Mr Synclair noticed that the stoma was black. Despite this he was discharged home the following day”. This description was repeated in the letter of claim of 22 December 2011 prepared by Messrs Stephensons pursuant to the pre-action protocol. Mr Colin makes the point that this description can only have come from the Claimant, as Mr Carter confirmed, and suggests that it is not a matter to be explained by error or misunderstanding. Mr Carter would have realised the importance of the description of the stoma as black as, if it had been, that would have been highly supportive of the Claimant’s primary case that the mesh had been fitted too tight thereby causing a strangulation of the bowel and interruption of the blood supply such as to lead to blackness of the stoma and ultimately necrosis.
  4. Mr Colin employed this point forcefully but fairly in his cross-examination of both Mr Carter and the Claimant. The Claimant maintained that he had explained to both Mr Carter and to the solicitors that the stoma looked black by which he meant that it had the appearance of a steak which had been left in the fridge overnight. He had not meant to imply that it was jet black but that it was much darker than normal and lacked a sheen. The judge was plainly alive to the significance of this point and expressly asked for submissions on it. Having seen the witness pressed on the point and having evaluated his evidence as a whole, in the light of all the other evidence at trial, the judge accepted his explanation – see [50].
  5. Neither before the judge nor before us did Mr Colin press a submission that this point went to the Claimant’s credibility as opposed to his reliability, although at paragraph 18 (2)(iii)(d) of his skeleton argument for the appeal he does suggest that it called into question his credibility. However it is to be regarded, the apparent inconsistency was a point to be deployed in cross-examination in an effort to challenge the accuracy of the Claimant’s description of the appearance of his stoma on 27 August, but it was not in itself a determinative issue. As Mr Colin realistically put it, the fact that the stoma was not black does not mean that the Defendant defeats the claim.
Conclusion
  1. I have no doubt that the judge’s fact-finding process was properly conducted in accordance with the precepts offered by judges of high authority. The judge made proper use of the advantage afforded to him of seeing the Claimant and his wife give their evidence. It may be that in the light of the wife’s unchallenged evidence and in the absence of any evidence from Dr Dal Bianco the judge could hardly have reached a conclusion other than that which he did. However that may be, in my judgment the judge’s conclusion that the clinical note recording the ward round at 08.10 on 27 August was unreliable – incorrect – in the respects identified by him at [49] was a conclusion which was entirely open to him on the basis of the evidence and well within the ambit of reasonable decision-making. I am satisfied that the judge had in mind and weighed in the balance as part of a single compendious fact-finding exercise the inherent probability of what he was asked to decide. I am satisfied that he took into account the totality of the evidence and that in the light thereof he was entitled to conclude that the clinical record was in the respects identified inaccurate. I have already expressed my own view that the discrepancy between that note and the Claimant’s account is probably not as stark as the judge thought. The form of the note is not necessarily inconsistent with what the Claimant both said and thinks it likely he would have said to Mr Zafar, and with what the Claimant said Mr Zafar said to him. However that may be, and on the premise that the Claimant’s account and the clinical note cannot both be an accurate record, the judge had ample material upon the basis of which he could prefer the former to the latter.

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