EVIDENCE AND ACCURACY OF RECOLLECTION: ANOTHER EXAMPLE IN THE HIGH COURT

The judgment of Mr Justice Jay in Jacobs -v- King’s College Hospital NHS Foundation Trust [2016] EWHC 121 (QB) is another example of a case resting on the accuracy of recollection of a witness.  Further the judge rejected a “statistical” or “probability” approach. The court examines the evidence first and weighs the evidence in the balance.

“There are no “keys” to the notionally unlocking of this case, in the sense that a judicial decision on any one specific point may be said to determine the outcome. All the evidence has to be weighed in the balance at all material times, with the judicial telescope, or microscope, constantly shifting in its power of magnification, bringing certain facts in and out of view, and then back into focus.”

KEY POINTS

  • The court had to consider alleged negligence where the treating doctor (quite reasonably) had no recollection of the operation.
  • The judge looked at the documents relating to complaints and treatment after the operation.
  • The documents in the “immediate aftermath” of the operation were significant in that they showed no complaints.
  • Later documents were not reliable as they were made at time when the claimant had a potential grievance in relation to the operation and

THE CASE

  • The claimant brought an action for clinical negligence alleging a failure to identify and repair a direct inguinal hernia in the right groin.
  • The claimant’s case was that this inguinal hernia was present at the time of an operation in July 2010 and not repaired.
  • There was a secondary argument that the hernia was not identified in a follow up investigation in August 2010.
  • The case rested on whether the hernia was still present after the operation and whether, in fact, there was mention of ongoing problems during a consultation after the operation.

THE ISSUES

This was a case where the operating doctor had no specific recollection of the operation.

  1. This case raises a not unfamiliar judicial conundrum. On the one hand the court is confronted by evidence from health professionals who can have no specific recollection of this patient and are therefore compelled to rely on their standard practice and (on the instant facts) relatively sparse contemporaneous records. On the other hand the court has a lay witness, supported to some extent by her mother, who can give a reasonably compelling account of events, and is wholly convinced in her own mind that the first operation was a failure. The unshakeable cornerstone of the claimant’s case is her belief that when she returned home from hospital on 13th June 2010 the lump was exactly the same.

RESOLUTION OF THE ISSUES

The central point to be made is that the judge rejected a submission that he should decide the case on the basis of the “inherent probabilities”  and that it was improbable that a doctor would have missed the hernia.
  1. I cannot accept Mr Gibson’s suggested approach which is in some way to weigh up and assess the competing inherent probabilities, and to conclude that the combined chance of Mr El-Hasani and Ms Grandy-Smith “missing” (in their different ways) an indirect inguinal hernia must be lower than the chance of recurrence stricto sensu. This approach may well appeal to a mathematician or statistician, and there are occasions where statistics and epidemiology have a role in the judicial decision-making process, but this is not one of them. The difficulty is that there is no comparison of like with like, and no proper basis for placing any sort of figure on the chance of an experienced surgeon making a mistake of the suggested nature. However, that is not to say that the inherent probabilities cannot be viewed more generally and impressionistically, a point to which I will be coming later.
  2. There are no “keys” to the notionally unlocking of this case, in the sense that a judicial decision on any one specific point may be said to determine the outcome. All the evidence has to be weighed in the balance at all material times, with the judicial telescope, or microscope, constantly shifting in its power of magnification, bringing certain facts in and out of view, and then back into focus.
  3. However, albeit not a “key” in the sense in which I am using the term, it does seem to me that rather a lot hangs on the claimant’s brief consultation with Ms Grandy-Smith on 2nd August 2010.
  4. Before I come to that, let me state my general impressions of the witnesses, and where their evidence leads. In my judgment, Mr El-Hasani must be an excellent laparoscopic surgeon with a track-record next to none in the UK. I have examined his cv and it is quite excellent. He came across as passionate in and excited about his work. His powers of explanation are not entirely perfect, because he is prone to slightly frenetic and imprecise formulations, but I note that English is not his first language – he was born in Baghdad and came to this country in the early 1990s.
  5. Mr El-Hasani was adamant that he could not have “missed” an indirect hernia on this occasion: more than once during his oral evidence, he said that this was “impossible”. But the experts are agreed that a mistake of this sort, however unlikely, is possible. Should I be concluding that, in refusing to accept the possibility of personal error, Mr El-Hasani was guilty of a degree of dogmatism, or stubbornness, which undermines his evidence more generally? I have thought carefully about this, but ultimately have concluded that I should not. We are all trained to admit to our mistakes, in order to avoid them in future, but I do not believe that Mr El-Hasani was doing more than saying that he simply does not accept that he could have made so egregious an error in a routine operation of this sort. He would have dissected the peritoneum fully, because he always does; he would have applied the mesh, so that it lay flat, because he always does; and having performed this procedure in line with his standard practice, any indirect inguinal hernia would have been in plain sight. In reaching these conclusions, I am not (yet) expressing a view about what happened on this occasion, I am setting out Mr El-Hasani’s state of mind.
  6. Ms Grandy-Smith was an impressive witness with an abundance of experience in the field of laparoscopic procedures, including inguinal herniae. She is not the sort of healthcare professional who would have downplayed a patient’s concerns or who would have failed to ensure that an accurate record of a consultation, however succinct, was given.
  7. The claimant came across as a pleasant, decent person who would not be prepared to lie to the court to secure a personal advantage. She described herself as “Joe Public”, by which she meant that she had no special medical knowledge but plenty of common sense. However, human recollection is notoriously unreliable, and the claimant’s case faces this forensic difficulty. She claims to have a clear, robust recollection of the events of 2ndAugust 2010, but in relation to other consultations she accepts that her memory is very patchy. She has kept no contemporaneous record of events, and her diary or aide-memoire started in June 2011 comes, I regret to say, too late to avail her. By then, the matter was turning litigious and solicitors had been instructed. The claimant certainly did tell her GP on 31st May 2011 that the hernia never went away, and that she mentioned this to the nurse at outpatients, but by that stage her mind-set was not merely to blame the first surgeon but to do something about it. I am not holding for one moment that the claimant gave a self-serving, mendacious account to her GP in order better to set up this claim, but I am holding that the claimant’s recollection was altered by unconscious bias and the influence of discussions with her mother, who I did consider was less than an objective, measured witness. There are other aspects of the claimant’s evidence which I will need to address in a moment…
  1. In my judgment, the defendant’s evidence is not quite rock-solid but it is sufficiently robust and well-anchored that it would require compelling and consistently reliable evidence on the claimant’s side to undermine it. The claimant’s evidence does not fall into that category.
  2. There is a remote possibility that Mr El-Hasani overlooked the presence of an indirect inguinal hernia on 13th July 2010, but I do not believe that he did. Furthermore, I do not accept for one moment that Ms Grandy-Smith would have written the same clinical letter had the claimant advised her that the hernia had not disappeared after the operation. I find as a fact that the claimant had a conversation with Mr El-Hasani’s secretary either a day or a week after the procedure (counter-intuitively, the claimant’s case is in fact stronger if more time elapsed, because the chance of a pseudo lump being formed by gas must be much lower), but this cuts both ways. I entirely agree that it is highly unlikely that the claimant would not have mentioned the lump to Ms Grandy-Smith if it was still there, but I do not accept that the latter would not have recorded the claimant’s concerns had they been voiced to her. She would not have written “has no symptoms”, and even had she believed that the lump was a seroma, she would as a diligent nurse have made some sort of record to that effect, in order that future health professionals could have something to work on should the need arise. I entirely reject Mr Hands’ point that reference to “no evidence of recurrence” is more consistent with the matter having been raised with her by her patient: she expressly denied that in cross-examination, and the purpose of an examination was to exclude all possibilities, however unlikely.
  3. I accept that it is possible that the claimant’s abdomen was still slightly swollen on 2nd August. However, Ms Grandy-Smith has written that the claimant’s abdomen was “soft”, and the better view is that there were no signs and symptoms.
  4. Overall, I find as a fact that the claimant did not mention the persistence of any lump to Ms Grandy-Smith on 2nd August 2010. The nurse’s evidence, coupled with Mr El-Hasani’s, leads me to conclude either that there was no indirect inguinal hernia at all on 13th July 2010, and it developed later, or that it was repaired on that occasion inasmuch as the peritoneum was fully dissected and the mesh was correctly located. However, I should emphasise – contrary to the view of the experts – that the first hypothesis is far more likely than the second, because had the latter been the case Mr El-Hasani would have seen the indirect hernia presentation and his note would have recorded the presence of a pantaloon hernia. Further, it is not clear to me how and why the mesh could have lain flat if a pantaloon hernia been present. My preference for the first hypothesis is not critical to my decision, and in any event I am not bound to accept expert opinion on an issue, even if there is no dispute about it as between the experts.
  5. These conclusions are fortified by the fact that the claimant did not return to her GP until 31st May 2011. She did not come across to me as an acquiescent, reticent individual; I would say that she is quite strong-willed, without being overbearing and overly demanding. In particular, if the claimant believed that the operation had gone wrong from day 1, she would not in my judgment have waited for so long. Any reassurance apparently given by Ms Grandy-Smith would have evaporated fairly quickly.
  1. As previously mentioned, the claimant felt it necessary to send an email to Mr Kerwat’s secretary asking him to amend his letter recording that her problems arose several weeks after the procedure. Mr Kerwat’s letter is, of course, consistent with (i) a mistake on his part, or (ii) the claimant having second thoughts when she appreciated the potential significance for her forthcoming litigation of this wording. On balance, I favour the first explanation. By that stage, the claimant had persuaded herself that the lump in her groin remained in exactly the same state at all material times. In the next paragraph I deal with whether there was any lump in the aftermath of the first procedure, and with how long it may have lasted.
  2. This leaves the issue of what, if anything, the claimant felt in her groin when she examined herself upon returning home on 13th July 2010. I take Mr Hand’s point that the claimant said in oral evidence that the lump reduced when she lay down, and that it enlarged when she coughed. However, the first matter does not appear in her witness statement, and her recollection is now distorted by ambient noise. As for the second matter, I would be slow to find that the claimant could self-diagnose a hernia, as opposed to a transient entrapment of gas within the space created by the excision of the direct inguinal hernia. In my judgment, the correct and more parsimonious conclusion is that there was a “lump” caused by an infiltration of gas, and that this had dissipated well before the claimant’s appointment with Ms Grandy-Smith on 2nd August. I reject the claimant’s case that the post-operative lump reduced on supination.

THE INADEQUACY OF THE DEFENDANT’S WITNESS STATEMENTS

One point worth noting is that the witness statement prepared on behalf of the defendant was not perfect. In particular the treating surgeon did not describe the operation in his statement and this had to be supplemented at trial. A point worth noting because, in some cases, a judge may be less forgiving.

  1. Mr El-Hasani provided a fluent and animated account of his laparoscopic technique. In my view, this should have been provided in his witness statement, but Mr Jonathan Hand for the Claimant rightly did not object, and I appreciate that some sort of oral explanation would always have been required.
  2. Mr El-Hasani could not give evidence of what he did in the claimant’s case; all he can do is explain his standard practice. Had he been able to remember this particular patient, I would have been surprised.

RELATED POSTS

There are numerous posts about witness evidence on this blog. These are links to the issues discussed in a clinical negligence context.

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