The resolution of factual issues in clinical negligence claims

February 25, 2022

Christopher Barnes 

Christopher Barnes discusses the recent case of Freeman v Pennine Acute Hospitals NHS Trust [2021] EWHC 3378 (QB) that provides a very helpful discussion and summary of the existing case law in respect of factual issues.

It is commonplace for factual issues to arise in clinical negligence claims. Those issues may relate to the symptoms complained of, the advice given or the consenting process itself. The contemporaneous medical notes may be lost, incomplete or inconsistent. It is vital that practitioners be aware of the approach that the court will likely take to determining the factual issues before considering the fundamental issues of breach, causation and quantum.

In the recent case of Freeman v Pennine Acute Hospitals NHS Trust [2021] EWHC 3378 (QB) there is a very helpful discussion and summary of the existing case law. In relation to fact finding generally, the judge commented that (para. 18):

As Lord Browne-Wilkinson said in Bolitho, the Claimant bears the burden of proving her case – including on factual issues – on the balance of probabilities. But I must first make such findings as I can on the evidence elicited rather than too readily resorting to the burden of proof and I must give sufficient reasons for doing so as Irwin LJ stressed in Barnett v Medway NHS [2017] Med. L. R. 217 (CA) at p.54:

There is great virtue in writing judgments concisely. However, the parties do need to know sufficiently what led to the conclusions reached. In this instance, the judgment gave only the briefest explanation. The obligation is all the clearer in a case of such complexity, and in a case where a key issue is decided on the basis that a claimant has failed to discharge the burden of proof….”

Missing records

In the Freeman case the claimant accepted that the burden fell upon her but argued that the Court could and should draw an inference from the Defendant’s poor record keeping – the argument being that if the court accepted that the record-keeping system at the time was substandard in not recording telephone calls, then it should not be able to rely on the absence of the record of such a call. The court noted and endorsed the approach of the Court of Appeal in McKenzie v Alcoa [2020] PIQR P6 in which it was said that:

“It seems therefore that it is possible to state the following propositions. First whether it is appropriate to draw an inference, and if it is appropriate to draw an inference the nature and extent of the inference, will depend on the facts of the particular case, see Shawe-Lincoln at [81]–[82]. Secondly silence or a failure to adduce relevant documents may convert evidence on the other side into proof, but that may depend on the explanation given for the absence of the witness or document, see Herrington at 970G; Keefe at [19]….”

The weight to be attached to oral evidence as compared to clinical notes

There have been a number of authorities addressing the weight to be given to oral evidence as against contemporaneous written evidence, albeit not all in the clinical negligence sphere. HHJ Tindall (sitting as a High Court Judge) helpfully reviewed all of the competing decisions (at paras. 23 to 29 of his judgment) before summarising his conclusions on all the factual issues at para 30:

I can perhaps summarise my approach to all these authorities in three short points:

30.1 The burden of proof is on the Claimant, but I should still attempt to make findings on all evidence on the balance of probabilities: Bolitho and Medway.

30.2 When assessing allegedly absent clinical records and any disadvantage to the Claimant, I apply the approach in Shawe-Lincoln as developed in Mckenzie.

30.3 When assessing the consistency of oral evidence with actual clinical records, I will apply the approach in Synclair and Manzi that I consider consistent with the approach taken on the facts in CXB, HTR and Ismail.

In Synclair v East Lancs NHS [2015] EWCA Civ 1283 the Court of Appeal upheld the trial judge’s acceptance of a claimant’s account of his condition, rejecting contemporaneous clinical notes, with Tomlinson LJ holding, at paras. 10 to 15:

10. [Counsel] reminded us of some of the classical learning on the nature of the judicial fact-finding function. We were shown, in chronological order: the well-known remarks of Lord Pearce in his dissenting speech in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at p 431; the guidance given by Lord Goff of Chieveley giving the opinion of the Judicial Committee of the Privy Council in Grace Shipping v Sharp & Co [1987] 1 Lloyd’s Rep 207 at 215-6, in particular founding upon his own judgment in the earlier decision of the Court of Appeal in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 when he said, at page 57:- “Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.” In Grace Shipping Lord Goff noted that his earlier observation was, in their Lordships’ opinion “equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence.” We were reminded that in “The Business of Judging”, Oxford, 2000, Lord Bingham of Cornhill observed that:- “In many cases, letters or minutes written well before there was any breath of dispute between parties may throw a very clear light on their knowledge and intentions at a particular time.” 11. The essential thrust of this learning is the unsurprising proposition that when assessing the evidence of witnesses about what they said, or what was said to them, or what they saw or heard, it is essential to test their veracity or reliability by reference to the objective facts proved independently of their testimony, in particular by reference to contemporary documentary evidence.

12. However it 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….I would commend 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. Dr Johnson, a GP, had made his own note of a consultation at an out of hours walk-in centre at a hospital. After a careful evaluation of all the evidence in the case, the judge found that Dr Johnson’s oral account in evidence, based on his contemporaneous note, was reliable. In Welch v Waterworth [2015] EWCA Civ 11 a surgeon was unsuccessful in persuading the court that his own notes of a surgical procedure…one a manuscript note written very shortly after the operation and another a typewritten note made later in the day at home, did not accurately record the order in which he had carried out the constituent parts of the relevant procedure.

…14. With those observations in mind, I turn to Mr Colin’s detailed criticism of the judge’s approach here. His three principal points were:- i) Clinical records are made pursuant to a clear professional duty, serious failure in which could put at risk a practitioner’s registration. Moreover, they are not compiled simply as a historical record, they fulfil an essential and ongoing purpose in informing the care and treatment of a patient. Contemporaneous records are for these reasons alone inherently likely to be accurate. No doctor would have any reason to produce a note which misrepresented clinical observations or the patient’s concerns. Something more than a patient’s assertions to the contrary is required to displace the sanctity, my word…of the notes.”

Those propositions were accepted by Tomlinson LJ and was noted as doing so by Sir Ernest Ryder SPT in Manzi v King’s College NHS [2018] EWCA 1882, at para 18, who added (at para 25):

The proposition that a contemporaneous clinical record is inherently likely to be accurate does not create a presumption in law that has to be rebutted…. It is an important factor in evaluating materials of that kind so that reasoning is necessary to explain how records (or their absence) are being treated on the facts of a particular case. To raise the bar so high that an analysis of what might be sufficient to displace inherent reliability is needed in every case is to make the process of fact finding too onerous and mechanistic.

It follows, and this will be of little surprise to those practicing in clinical negligence claims, that the contemporaneous medical notes may be persuasive but they are not and should not necessarily be determinative.