CIVIL EVIDENCE: ABSENT DOCTOR DOES NOT LEAD TO AN ADVERSE INFERENCE

CIVIL In Manzi -v- King’s College Hospital NHS Foundation Trust [2016] EWHC 1101 (QB) Mr Justice Nicol considered the question of whether it was appropriate for a court to draw adverse inferences when a witness is not called.

“… in Wisniewski the Court was concerned with whether the trial judge was entitled to draw an adverse inference. The Claimant seems to be suggesting that I was obliged to draw such an inference, but Wisniewski does not go so far and it would be surprising if it had. The fact finding process is more nuanced than that.”

THE CASE

The claimant brought an action in clinical negligence alleging negligence in failing to remove part of the placenta after childbirth.  The crucial issue was the size of the placenta which was retained.  A doctor had made a note recording what was said to the claimant after the operation. That doctor , Dr Hooper, was not called to give evidence, the claimant argued that this should lead to the court drawing adverse inferences.

The judge refused to draw adverse inferences and expanded upon his reasons for doing so.

“xvi) Dr Hooper’s note records what she said to the Claimant after the operation. I have no reason to doubt its accuracy of what was said in that conversation. There is no evidence that Dr Hooper was speaking from first-hand knowledge. The note of the operation lists the consultant, Dr Krueger and anaesthetist. It does not mention Dr Hooper (although the Defence accepts that Dr Hooper may have been present). Her note gives the size of the products removed as 8 cm. This is not identical to the dimension given in Ms Robinson’s USS report, but it is preceded by a symbol meaning ‘approximately’ and this would not lead me to conclude that Dr Hooper had herself measured the object. Dr Hooper refers to what was removed as ‘products’. Strictly speaking, while a piece of the placenta would be a product of conception, a blood clot would not. A doctor should, of course, be careful to convey accurate information to a patient, but one must also guard against being overly legalistic in the interpretation of such a note. I observe, for instance, that the note also said that a suction curette was used ‘to remove any further products’. The suction would, of course, have been used to remove not only the products of conception, but any other matter which might have been in the uterus. Ms Robinson’s USS had reported that the echogenic mass was surrounded by ‘?fluid/blood’ and so there was likely to have been such other matter. There was no witness statement or evidence from Dr Hooper, apart from her note, but these are not (when taken together) circumstances which lead me to draw an adverse inference against the Defendant because it did not call Dr Hooper.
xvii) After this judgment was distributed in draft, the Claimant invited me to expand on my reasons for declining to draw an adverse inference against the Defendant because of its omission to call Dr Hooper. Ms Woods had submitted that I should take this course in reliance on Wisniewski v Central Manchester Health Authority [1998] PIQR P324 CA. There was, she submitted, no evidence as to why a witness statement from Dr Hooper had not been served and Mr Krsljanin’s suggestion in closing that this was a relatively small clinical negligence case to which the Defendant was entitled to take a proportionate approach was not evidence. Besides, Dr Hooper could still have given material evidence. In Wisniewski, though, the absent witness had been the doctor whose negligence was said to have caused (or whose actions could have avoided) the harm which the Claimant suffered. His role was absolutely central to what the Court had to decide. The trial judge had observed in the course of the hearing that ‘he had never come across a case before where a person had chosen not to come to defend his clinical judgment’ (see p.342). Dr Hooper’s position was far more tangential. She was not the doctor who was alleged to have been negligent. She may have been present at the operation on 21st April 2011, but she was not the surgeon. The Defendant took no issue with the account which Dr Hooper gave in her note of her conversation with the Claimant after the operation, but that has the limitations on which I have already commented. Furthermore, in Wisniewski the Court was concerned with whether the trial judge was entitled to draw an adverse inference. The Claimant seems to be suggesting that I was obliged to draw such an inference, but Wisniewski does not go so far and it would be surprising if it had. The fact finding process is more nuanced than that. The factual matrices of cases inevitably differ and, as I have already said, in the present circumstances, I do not consider such an inference is appropriate.”

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