What approach should the court take when there is a fundamental dispute of fact between an individual’s recollection given in witness evidence and contemporaneous medical records? This was the issue in the trial of HTR v Nottingham University Hospitals NHS Trust [2021] EWHC 3228 (QB), heard by Cotter J between 5 and 7 October 2021. The case will be of interest to clinical negligence practitioners following the judge’s preference of the Claimant’s mother’s witness evidence about matters that occurred 17 years earlier, despite the existence of a medical note made at the time which appeared to directly contradict that evidence.

The Facts

The Claimant was born on 10 October 2004. Four days earlier, the Claimant’s mother, LJR, had attended at the Defendant’s clinic where she was seen by a Dr Salman due to concerns that the baby was in breech position.

The fundamental dispute of fact in this case was whether, at that attendance, LJR had mentioned to Dr Salman that she had been experiencing reduced fetal movement.

LJR’s evidence was that she made a clear report to Dr Salman that she was experiencing reduced fetal movement, and that Dr Salman had carried out an ultrasound scan and reassured her that all was well.

The Defendant’s case was that LJR did not report reduced fetal movement, as the medical records stated as follows:

“Well. Worried if baby breech. Confirmed cephalic by USS. Declines having FBC. See @ 41/40

“Active FMs [fetal movements].“

The Defendant’s position was that it was not Dr Salman who carried out the ultrasound scan.

On 10 October 2004 the Claimant was born by emergency Caesarean section. He suffered permanent damage from chronic partial hypoxia which has resulted in asymmetric quadriplegic cerebral palsy.

The trial was confined to the issue of breach of duty.

It was accepted by all parties that, if there had been a report of reduced fetal movement on 6 October 2004 and that report was not acted upon, such an omission would amount to a breach of duty. 

The Trial

LJR gave evidence on the key factual issues and maintained that she had informed Dr Salman about the reduced fetal movement and that it had been Dr Salman who had carried out the ultrasound scan.

An important issue arose about who it was that carried out the ultrasound scan. Dr Salman had stated within her second supplementary witness statement dated 27 September 2021:

“… to be absolutely clear, whatever the state of my training in October 2004, I was never trained to perform ultrasound scans, I never scanned, I still don’t scan“.

This, it transpired, was not correct. Dr Salman had undertaken ultrasound scans. There was evidence from other doctors working at the Defendant trust to the extent that “[i]n 2004 it was quite common for us to undertake our own ultrasound scans to identify the presentation of the baby using a spare machine in one of our assessment rooms.” 

This led to the judge approaching the evidence of Dr Salman with some concern. As was stated by Cotter J at [53]:

“I received no satisfactory explanation for this very seriously misleading assertion which provoked an expression of some incredulity from Dr Brocklesbury in his responsive statement dated 1 October 2021. It resulted in the balance of her evidence, when not corroborated by records or other witnesses, having to be treated with considerable caution.“

The Law

The judge set out the general approach to contemporary records where there was a conflict with a witness’ recollection. Reference was made to the well-known comments of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm). 

The judgment of Cotter J at [79]-[85] merits consideration in full:

“[79] Turning to medical records in Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283, Tomlinson LJ made the following observation: 

“[12] … [I]t 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.”

“[80] In those circumstances, Tomlinson LJ “commend[ed] 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.”

“[81] Tomlinson LJ noted at [15] that while there was general force in the submissions made by Counsel that clinical notes are inherently likely to be reliable, 

“here [those submissions] are less persuasive because there is so much uncertainty concerning the circumstances in which the critical note was made”.

“[82] Similarly, in HXC v Hind & Craze [2020] EWHC (QB) (5th October 2020), faced with a dispute about the accuracy of medical records, I stated at [137] that:

“In my judgment a court can and often will taking a starting point, but no more than a starting point, that a contemporaneous entry made by a medical professional is likely to be a correct and accurate record of what was said and done at a consultation/examination.” [Emphasis added]

“[83] As for the approach to evaluation of the evidence of a witness I set out my view in Pomphrey v Secretary of State for Health & North Bristol NHS Trust [[2019] Med LR 424]:

[31] I start with some very general and basic propositions. When evaluating the evidence of a witness whose testimony has been challenged it should be broken down into its component parts. If one element is incorrect it may, but does not necessarily mean, that the rest of the evidence is unreliable. There are a number of reasons why an incorrect element has crept in. Apart from the obvious loss of recollection due to the passage of time, there may be a process of conscious or subconscious reconstruction or exposure to the recollection of another which has corrupted or created the recollection of an event or part of an event.

[32] The court must also have regard to the fact that there can be bias, conscious or subconscious within the recollection process. When asked to recall an event that took place some time ago within the context of criticism people often take an initial stance that they cannot have been at fault; all the more so if the act in question was in terms of their ordinary lives; unmemorable. There is a tendency to fall back on usual practice with the tell-tale statement being “I would have” rather than “I remember that I did”.

[33] To approach the exercise of fact finding in a complex case (when faced with stark conflicts in witness evidence) as necessarily requiring all the pieces of the jigsaw to be fitted together is often both flawed and an exercise in the impossible. This is because individual pieces of the jigsaw may be wrong, distorted to a greater or lesser degree or absent. Indeed, it is not possible to make findings if the state of the evidence or other matters mean that it is not proper to do so (see generally Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948). However, often a sufficient number of pieces may be fitted together to allow the full picture to be seen. 

“[84] The hearing in this case took place seventeen years to the day after the events in issue. LJR first prepared a statement eight years after the meeting with Dr Salman. I have no doubt she has discussed what took place with her mother and husband, both of whom gave evidence, on many occasions. As for Dr Salman she was first asked to cast her mind back to October 2004 in 2018. Fourteen years of practice as a Doctor had intervened during which the focus amongst practitioners on reduced fetal movements had increased. As a result I have considered the reliability of the recollections of the principal witnesses with great care.

“[85] The critical medical note records active fetal movement (“Active FMs”). However, such an entry, which does not state if the movements were seen on scan or reported by LJR, does not preclude concern having been expressed by LJR that there had been reduced (as opposed to no) movement recently. Dr Salman’s evidence was that if such concern has been expressed she would have recorded it, and as she had not made a record of such a concern it cannot have been raised. However as I have already stated I believe that her recollection has been affected by the intervening years of practice and the greater emphasis on reduced fetal movement since 2011.“

The Judge’s Findings

The judge found that Dr Salman had carried out the scan on 6 October 2004.

The judge further found that LJR informed Dr Salman that there was reduced fetal movement.

In light of that finding, Cotter J found that the Defendant was in breach of duty.

Comment

This appears at first blush to be quite a surprising finding. As lawyers, we all know that memories fade over time and that recollections can be coloured by the litigation process. It is therefore notable in this case that the judge preferred a recollection provided seventeen years after the event over the contents of contemporaneous medical notes.

However, reading between the lines, there are obvious factors which have led to the Judge preferring the Claimant’s case. In particular, the position adopted by Dr Salman to the ultrasound scan appears to have significantly damaged the Defendant’s position.

Cotter J’s summary of the correct legal approach to medical records is comprehensive, and will be of use to clinical negligence practitioners. 

The final point to note, with regard to those practising in litigation, is the importance of accuracy in witness statements and Part 18 replies. One can only wonder what the position would have been in this case had the Claimant not obtained the damaging concessions from Dr Salman about the ultrasound scan issue. The phrase “I never scanned, I still don’t scan” set out in her witness statement appears to have been a careless, and potentially very costly, thing to say…

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