There have been several cases this week where a clinical negligence claim rested, ultimately, on whether or not a judge accepted a doctor’s account of what was said. In Lillington -v- Ansell & Jennison  EWHC 351 (QB) Mr Justice Hickinbottom considered the evidence of two doctors. The doctors were successful in their defence. However, if nothing else, the case serves as an illustration of the need to keep good notes. Further it highlights the need for those taking a witness statement to ensure that the witness differentiates between “recollection” and reconstruction.
“I accept that: whilst I found some of the details of his evidence – including, I must say, some important details – to be unreliable, in my judgment that was a result of an honest, but faulty, attempt to recollect what happened at the relevant time. Unfortunately, in my view, genuine attempts at recollection became unconscious reconstruction.”
- Ensure that a witness knows and understands the difference between recollection and “reconstruction”.
- There is no difficulty in a witness stating (i) this is what I can recall; (ii) this is what I cannot recall but this is my normal practice. Again we have seen several recent cases where the courts have accepted this as genuine evidence and the evidence was accepted on this basis.
- The points made here in relation to medical notes could apply, perhaps with equal force, to lawyer’s attendance notes.
The claimant brought a clinical negligence action against two doctors alleging they failed to ensure that she was admitted to hospital earlier that she was, in fact, admitted.
THE ASSESSMENT OF THE EVIDENCE
In considering these issues, Mr Spencer criticised the record keeping of both Dr Ansell and Dr Jennison. In particular, in the notes of their respective consultations, neither recorded the frequency of the Claimant’s vomiting or anything about headache. Both doctors accepted that, at best, their notes were not optimal. In cross-examination, Dr Ansell frankly described his own notes as “sloppy”, and inadequate in the ways Dr Rogers had described, i.e. in not recording the frequency, duration and amount of vomiting, any details of headache and the symptoms of cystitis from which the Claimant complained (see paragraph 1 of the joint statement dated 8 March 2015). Dr Pambakian accepted in cross-examination that the notes ought to have included frequency and duration of vomiting.
Even allowing for the exigencies of general medical practice, I agree with Mr Spencer’s submission that the notes were, in these matters, inadequate. Given that the Claimant’s diagnosis and the cause of the Claimant’s continuing sickness were unknown, the nature of her vomiting and any associated headache was of clinical importance; and it was important that these details were recorded for the benefit of doctors who may have been involved in the case at a later stage.
i) There is a material discrepancy between the evidence of Dr Ansell (who says he gave the Claimant a Buccastem pill, and told Dr Jennison that he had done so), and Dr Jennison (who says he understood that the Claimant had had no such medication before he saw him later that day). For the reasons I give below (see paragraphs 93-96), I consider Dr Ansell is wrong in this part of his evidence; and I accept that it is an important detail.
ii) It was implausible that the doctor could recall now that the Claimant told him that she had improved and had only been sick twice that morning, when that does not appear in either the medical notes or his statement. I accept that this part of Dr Ansell’s evidence was unsatisfactory; although I do not consider that it significantly undermines his evidence as to the Claimant’s general presentations when he saw her.
iii) Dr Ansell gave an account to Dr Pambakian that, when he arrived at her house, the Claimant was not only up and dressed, but reading a book, which is not mentioned in the pleadings or statement. I accept that the reference to reading a book is something of a mystery – it appears probably to have been included in some earlier notes to which Dr Pambakian had access – but in any event I do not consider it is of any great moment. The primary point is that Dr Ansell found the Claimant up and dressed, and in a better medical condition than he had been led to expect. Whether she had or had not been reading prior to his arrival is material, but not of any great weight.
iv) Dr Ansell’s assertion that he was with the Claimant for 45 minutes from noon must be regarded with caution because the Claimant made a telephone call (to her alternative medical centre in Winchester at 12.25, which must have been after Dr Ansell had left). I agree that it is likely that Dr Ansell had left the Claimant shortly before 1225, and was therefore with her about 25 minutes and not longer (see paragraph 29 above). Dr Ansell had calculated these times backwards from 13.00 by when he must have been back at the surgery to send off the MSU sample for analysis. In the event, that calculation was wrong; but I do not consider that significantly affects the credibility or reliability of his other more general evidence.
v) There were other details of Dr Ansell’s evidence that were not reliable. For example, first, Dr Ansell said that he recalled discussing echinacea with the Claimant, who told him that she had taken the product throughout her illness. The Claimant denies this, because she has never had echinacea in her house, and has never taken it. The evidence with regard to echinacea (or “econashia” in the medical records: see paragraph 21 above) is certainly mysterious. How that reference came to be in the records, if the Claimant never mentioned it to Dr Shaw, is certainly odd. However, it is of no substantive moment; because it has never been suggested that any ingestion of echinacea caused the Claimant any symptoms, and she never suggested to any healthcare professional that it had. It is a matter that only goes to Dr Ansell’s credibility. I shall, in favour of the Claimant, proceed on the basis that Dr Ansell’s recollection of that part of the conversation was incorrect.
In relation to some of the details of his evidence, I accept that Dr Ansell was far from a satisfactory witness. He himself accepted that he did not recall all of the details of the consultation; but, he said, he did recall the “principles”. I accept that: whilst I found some of the details of his evidence – including, I must say, some important details – to be unreliable, in my judgment that was a result of an honest, but faulty, attempt to recollect what happened at the relevant time. Unfortunately, in my view, genuine attempts at recollection became unconscious reconstruction. However, having seen Dr Ansell give his evidence, I do not consider that those failures with regard to detail significantly undermines his evidence with regard to general matters; and, specifically, I accept his evidence as to the general presentation of the Claimant, to which I shall come shortly.
In respect of Dr Jennison, Mr Spencer submitted that:
i) Dr Jennison’s evidence that he asked the Claimant about headache, and she denied having (or having had) a headache. That, Mr Spencer submitted, is incredible, if, as the firm evidence suggests, she had had the “worst headache ever” only the day before.ii) Dr Jennison’s evidence about what the Claimant’s history of vomiting was unsatisfactory. The doctor said that he asked about the frequency of vomiting, but (a) did not record any response, and (b) cannot now recall the Claimant’s response – except, he said, she said that she had vomited since seeing Dr Ansell; and, if he had been told that she had been sick every 20-30 minutes for three days, he would have recorded that, because it would have been such a remarkable history.
I again agree with Mr Spencer that the inadequacy of the notes is unfortunate, and Dr Jennison’s evidence in relation to both headache and vomiting was not altogether satisfactory. In particular, although by the time the Claimant saw Dr Jennison I am satisfied that her headache had resolved (and the Claimant herself appears to have attached little importance to it), I am unconvinced that the Claimant denied she had had a headache during any part of her illness, after direct questioning by Dr Jennison, as he recollects. I do accept that she led him to believe that she did not have a headache at the time of the consultation, which was indeed the case.
However, again, on all of the evidence, I am satisfied that, despite these deficiencies as to detail, Dr Jennison’s evidence as to the Claimant’s general presentation when he saw her was reliable. He said that she presented with nausea, not vomiting, and was not as poorly as he had been led to believe she might have been. I do not accept Mr Spencer’s submission that it is implausible that the Claimant was better than she had been, but nevertheless approached the surgery that evening and then saw Dr Jennison. As Dr Jennison said, she was still “not right”; and, although her vomiting may have been better than it had been, by 18.30, it is likely that the symptoms of nausea deriving from hyponatraemia were kicking in. On any view, she was still poorly.
Dr Ansell and Buccastem
There is a discrete issue as to whether Dr Ansell gave the Claimant the antiemetic pill, Buccastem, i.e. as well as giving her a second pill for later, actually saw her ingest a pill whilst he was with her.
In his oral evidence, Dr Ansell said that, during his consultation with the Claimant, she confirmed that, although having been prescribed antiemetic pills by Dr Shaw on 29 September (and advised by Dr Worden on 30 September to take them, if her sickness persisted), she had not taken any antiemetic medication. He said he recalled giving her two Buccastem pills, one of which she took whilst he was there, and the other she saved for use later if required.
However, I am unable to accept that evidence.
i) Dr Ansell made no note of having given the Claimant that medication. Mr Spencer submitted, with some force, that, if Dr Ansell had administered that drug, he would have made a note of it.ii) Dr Ansell accepted in cross-examination it was clinically “extremely important” that he had given her an antiemetic because, if her vomiting continued, it would be continuing despite that treatment…
Therefore, I consider Dr Ansell’s recollection in this regard is wrong. I find that, although he gave the Claimant two Buccastem pills, he did not supervise her taking one of them; nor did she in fact take one. Later that day, she rightly led Dr Jennison to believe that she had not taken any antiemetic medication before the consultation with him.
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 basics9. Witness credibility: what factors does the Court look at?10. That “difficult second statement”: its hardly ever going to be a hit.11.Assessing the credibility of a witness: it is a matter of communication.
- The Yeo case: witness evidence and credibility.
- Witness credibility, attendance notes and findings of fact.
- A quick word on witness credibility: what the butler said
- Another assessment of witness credibility
- Proving things 10: “He said, she said”: The difficulties of recollection.
There are numerous posts about witness evidence on this blog. These are links to the issues discussed specifically in a clinical negligence context.
- Evidence, proof and documents: medical records not definitive of condition.
- Witness credibility, attendance notes and findings of fact.
- Witness statements, clinical negligence and clinical notes: a case in point
- More on changing witness statements and credibility: a clinical negligence case.
- Lay evidence and expert evidence in clinical negligence: more is not always better.
- Adverse inferences from absent witnesses: a clinical negligence case.
- Evidence and causation: a clinical negligence case
- Witness credibility, Bolam and clinical negligence: A High Court decision.
- Similar fact evidence in clinical negligence cases.
- Evidence and accuracy of recollection: another example in the High Court.
- Witnesses, trials and accuracy of recollection: another example
- Witness trials and accuracy of recollection (II)