WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS 2: A USEFUL COUNTERBALANCE

A post earlier this month looked at a case where the judge favoured the witness evidence over a written medical record.  The decision in Grimstone -v- Epsom & St Helier University Hospitals NHS Trust [2015] EWHC 3756 (QB) is a useful counterbalance to that.

KEY POINTS

  • Although a doctor could remember nothing of the consultation in question the court preferred his evidence of his normal practice, combined with the contemporary documents.
  • The claimant’s evidence was honest, but not accurate, it was “unclear and unreliable”.

PRACTICE POINTS

  • This case underlines the difficulties of litigating when an action depends, almost wholly, on the accurate recollection of witnesses.
  • There were some issues in the claimant’s evidence which should, probably, have been explored in the evidence in chief.

THE CASE

The claimant brought an action alleging lack of informed consent in the choice of a hip operation. The central issue was what was said at various pre-operation consultations.

THE EVIDENCE OF THE DOCTOR

This was a typical situation in which the doctor in question could remember nothing of the consultation.

“i) Professor Field had no recollection of the consultation so gave evidence of his invariable practice, his notes and the letter to the GP which he dictated in Mrs Grimstone’s presence during the consultation. He said his practice was to invite the patient to interrupt the process of dictation if he made a mistake.”

THE EVIDENCE OF THE CLAIMANT

“The Claimant had some memory of being advised about the general risks of surgery. In her witness statement she said, “I cannot believe that the consent form in my medical records is the same one I signed”. In her evidence she accepted it must be and that her recollection was not complete.”
CHOOSING BETWEEN THE TWO ACCOUNTS OF THE CONSULTATION AND THE QUESTION OF INFORMED CONSENT
What did Professor say to Mrs Grimstone about the procedure to be carried out?
Through no fault of Mrs Grimstone her recollection is unclear and unreliable in this area. She did not have to recall the detail until many years after the conversations. By then she had undergone numerous surgical procedures and had numerous similar conversations. She has an understandable sense of grievance that the original surgery has gone so badly wrong and has caused her such pain and suffering. She cannot remember things which clearly were said and finds the contemporaneous record of two conversations impossible to reconcile. On the dispute between the witnesses as to what was said about the form of surgery being proposed I have no hesitation in preferring the recorded versions attested to by Professor Field. In the first consultation he contemporaneously dictated a letter to the GP setting out the form of surgery proposed by him for Mrs Grimstone”

OTHER ASPECTS OF THE CLAIMANT’S EVIDENCE

Evidence came out in cross-examination which did not assist in the claimant’s case in relation to causation.

“x) Asked in cross-examination whether she would have chosen the Mitch PER, if she had been told that it was the best for her and would be the longest lasting, she declined to answer, saying it was a hypothetical question. That refusal to answer the question is telling; there is no doubt she would have followed the recommended course and chosen the device that met her requirements.”

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