Weighing up contrary evidence: clinical records and witness evidence
CXB v North West Anglia NHS Foundation Trust [04.07.19]
This case required the Judge to weigh up the contrary evidence of the family and the clinicians in order to resolve a factual dispute.
In doing so, His Honour Judge Gore considered the case law relating to the reliability of contemporaneous medical records and the reliability of witnesses’ recollections, and expressed his reservations about the current ‘fashion’ for courts to prefer clinical records to contrary factual accounts. Kennedys acted for North West Anglia NHS Foundation Trust (the Trust) in the successful defence of this clinical negligence claim.
The claimant and her twin brother were born at Hinchingbrooke Hospital in 2008. The claimant’s brother was delivered successfully by natural vaginal delivery, but the claimant then had to be delivered by emergency caesarean section. The claimant now suffers from cerebral palsy.
The claimant alleged that her mother requested an elective caesarean section during the pregnancy on numerous occasions, but this was refused.
The Trust denied that the claimant’s mother had requested an elective caesarean section at any stage. The Trust’s position was that the claimant’s mother was offered a choice of natural vaginal delivery (with induction of labour if necessary) or elective caesarean section, and she chose a natural vaginal delivery.
There was no record within the contemporaneous medical records that the claimant’s mother requested an elective caesarean section on any of the occasions on which she was seen.
The issues to be determined in this case were purely factual. No expert evidence was relied upon. It had been admitted in the defence that if the claimant’s mother had chosen delivery by elective caesarean section this would have been agreed, and the event which caused the claimant’s brain damage would have been avoided.
The claim was dismissed. The court found that there was not sufficient evidence to conclude that the medical records were unreliable or incorrect, but there was ample evidence that the contrary witness evidence was unreliable and incorrect. The court preferred the evidence of the Trust’s witnesses to that of the claimant’s family, which included her parents, two aunts and her grandmother.
HHJ Gore sought to establish that the issue for the court should be whether:
When the evidence is viewed as a whole, there is material that justifies the conclusion that the clinical record is unreliable or incorrect or whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the witness evidence to the contrary is unreliable or incorrect.
HHJ Gore was critical of the current ‘fashion’ of acceptance in other cases, particularly clinical negligence cases, of the principle that the reliability and veracity of assertions contained in medical records should be preferred to contrary factual accounts. Most recently expressed in Taylor v Chesterfield Royal Hospital NHS Foundation Trust [30.4.19].
He considered that this ‘fashion’ was fraught with danger.
Whilst it is undoubtedly right that the court must consider the evidence as a whole when reaching its conclusions, we do, however, have concerns that HHJ Gore’s formulation of the appropriate test could potentially place too little weight on what he himself recognised as the value of:
Contemporaneous records made by [clinical] practitioners in the course of discharging their clear professional duty to inform the care and treatment of the patient moving forward, and not simply provide a historical record of what occurred.