Whom to believe – clinician or patient?

Medico-legal Minder has written before on this theme, but a case last week in the High Court (CXB v North West Anglia NHS Foundation Trust) is another example of the importance of consistency of accounts (and memory) if you want a judge to treat your evidence as more likely to be true.  That is equally the case of written records as of oral evidence or witness statements.  The case of Hassell, on which I have written elsewhere[1] and in passing on this blog[2], was a strong example of the clinician’s evidence being rejected for inconsistency and the patient’s preferred.  Now we have an example of the patient’s evidence being rejected for inconsistency and the clinicians’ preferred.

A claim was brought on behalf of a twin damaged at birth.  It was agreed that if the mother had chosen an elective caesarean section, her choice would have been agreed by the clinicians and the injury to the baby would have been avoided. The mother gave evidence, supported by the father, her mother and sisters, that she had requested an elective caesarean section. However, none of the clinical notes made by doctors or midwives recorded any such request or related discussion. The judge needed to find a logical basis for finding one or other of these versions of events more likely to be correct.

The judge found that the evidence on behalf of the claimant was given honestly and that the witnesses believed what they said.  However, he found that their evidence was not externally or internally consistent. The mother and father had both changed their accounts in two material ways. The mother said in her witness statement that she had told doctors and midwives that she would like to have a caesarean section, and that that was always her view, while in cross-examination she said she wanted a caesarean section if the baby’s head was in a downward position, and only made up her mind about a caesarean section later. The father said in his witness statement that the mother wanted a caesarean section if the baby was in a non-standard position, but in cross-examination said the mother had not stated her view. The mother also recalled in cross-examination a meeting with a midwife that she had omitted from her witness statement, which undermined the credibility of her account.

The judge noted that there were no contemporaneous records supporting the mother’s account, and therefore in order to accept the parents’ account the court would have to accept that the senior registrar had lied in several respects. The judge found that the registrar was an honest witness and, importantly, that there was consistency between her witness statement and her oral evidence and the evidence of the midwives. As a consequence, he could not find that the clinical records were inaccurate or unreliable.  Therefore the child’s claim failed.

It is however interesting to note what the judge made of the NHS Trust’s argument, relying on a previous court decision, that the court should prefer the reliability and veracity of written records over witness statements and oral testimony, because the court should base factual findings on inferences drawn from documentary evidence rather than rely on witnesses’ recollections.  In CXB he regarded this as no more than a reminder to judges that caution had to be taken in making their assessment as to which evidence to prefer, and that full and proper reasons had to be given.

Learning points:

In a clinical negligence case there is no general principle that the judge should prefer the reliability of clinical notes over witness statements and oral evidence because of the unreliability of a witness’s recollection of events. It is important that the clinical notes are full, clear and unambiguous, and consistent with all other evidence, oral or documentary, from the medical team.  Failure to make such notes and records is inexcusable – ways of doing so, even where time is short, must be devised.

Finally, despite the title of this article, it is not really a matter of who to believe, but whose evidence is the more likely to be accurate, applying the balance of probabilities to the evidence available to the court.

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[1] Clinical Practice and the Law – a legal primer for clinicians  (see section 2.8 and section 6 (records and note making)) and see also in JTO

[2] https://medico-legalminder.net/2019/05/29/consenting-for-pain/

Consenting for pain

In the recent case of Ollosson v Lee [2019] EWHC 784 a patient was consented for a vasectomy.  He was told that there was a small risk, greater than that of early or late failure of the vasectomy, of chronic testicular pain as a potential complication, that the pain might affect the patient’s lifestyle, could be long-term and in the range mild to severe, and that there was no consensus about specific treatment for it.  It was indicated that the pain would in general be treated with over-the-counter medicine.  No mention was made of the possible need for treatment using morphine or referral to a pain clinic or the need for reversal of the vasectomy.

The patient developed chronic scrotal pain following the procedure.  He brought a claim against the doctor alleging that there had been a failure to advise of the risks associated with the procedure.  The evidence was that the risk of chronic pain was about 5% and that 0.9% might suffer severe pain affecting their quality of life 7 months’ post-operation.  The percentage suffering pain at the level of this patient was smaller.

The claim failed.  The judge held that it was not necessary to give the patient percentage risks.  It was adequate to describe the risk as ‘small’, “an everyday word which encompassed and satisfactorily conveyed the risk”.

The judge further held that a patient told of a ‘small’ risk could ask for clarification but in the absence of that it was only necessary to provide the patient with adequate information without their having to ask a question.  In this case that was done.

Learning points:

  1. This case illustrates possible limits to the information which must be given to properly inform a patient before an operation, although each case will be ‘fact sensitive’. While ‘small’ is a very imprecise number, it may be adequate to describe the risk of an operative risk. Here, on the evidence, that risk appeared to be less than 0.9%.  A possibility of ‘severe’ pain which might affect the patient’s lifestyle may be a sufficient description without indicating the nature of possible necessary treatment.
  2. Clinician’s regarding this case as support for being less than precise in describing risk or possible treatments for unfortunate outcomes might like to keep in mind that in a desire to properly inform a patient and to avoid possible litigation (or even the threat of it) it is probably wiser to be as precise as possible in describing risk, where the data is available, and the kind of treatment such an outcome might demand, where that can be sensibly summarised.
  3. It is not enough simply to give this information verbally to a patient. There must be some record (written notes or computer entries) made by the clinician to support what it is the clinician says was said, which may not be the same as what the patient recalls being said. (See for example the case of Hassell v Hillingdon NHS Foundation Trust considered in detail in Section 2.6 of Clinical Practice and the Law – a legal primer for clinicians)
  4. Interestingly both sides in the trial agreed that the information booklet provided to patients in advance of the procedure was inadequate, and on behalf of the clinician it was therefore necessary to rely on what was said by the clinician on the day of the procedure. There is no good reason why the information booklet should not be fully informative, and clinicians should review such booklets to ensure that they are adequate. Further relying on information given on the day of the procedure, when the patient arrives expecting the operation to be carried out and having made work and social arrangements to be there and for any necessary aftercare, is unwise and potentially negligent (see Thefaut v Johnson [2017] EWHC 497).

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