The Importance Of A Good Witness Statement In Clinical Negligence Cases

Over the past few years there have been several changes to the requirements for witness statements but the value of a good statement well drafted and focused can still be significant.

A witness statement is an important part of a claim but in clinical negligence, in particular the crucial section can relate to just a very minute part of the history of events.

Take the recent case of Freeman v Pennine Acute Hospitals NHS Trust where the witness evidence was fundamental.

The facts

This was a claim for severe brain injury at birth for a child who ultimately died at 12. The case revolved around whether a midwife gave negligent advice. At 10.30 on the morning of the birth the mother experienced sudden, intense, abdominal pain and the father alleged that he rang the maternity unit and told them about the pain. He said that he received advice (which was disputed) for his wife to take paracetamol and have bed rest. Later that day she was admitted and underwent a caesarean section. Sadly, the baby was born with significant neurological injuries.

Much of the case was agreed between the parties but the issue of the advice given was disputed. However the defendant hospital appeared to have significant problems with record keeping which did not assist the Trust. Poor record keeping does not save a defendant by having limited or no records of an event.

The father’s evidence clearly confirmed that he had told the midwife of the severe or intense pain. He confirmed the panic in the family at the time when the advice was given. He explained why he had such a strong memory of events.

The Judge found that the midwife was told of this pain and provided incorrect advice in response. The evidence of the family was believable and consistent. The witness statements had to deal with the whole event – from previous medical history, through the history of the pregnancy to the caesarean section and beyond. As the case progressed, the fundamental issue to whether it could succeed was the content of a very brief telephone conversation hours before the final admission.

By contrast Watson v Lancashire Teaching Hospitals NHS Foundation Trust demonstrated the need to be careful about the witness statements being put forward.

The facts of the case

The claimant had attended the ED Department two months before the index event. Two months later she had a serious stroke. Her case was that she was suffering from a TIA (mini stroke) at the time of the initial visit and if this had been included in the differential diagnosis she would have been prescribed Aspirin. Therefore, the stroke would probably have been avoided.

The defendant argued it was not a mini stroke. Even if it had been, the aspirin would have been taken just for a short time. Further, even if she was still taking aspirin, she would probably still have had the stroke.

Again, the parties agreed much of the case, so the issue became quite focused to how the claimant had presented at the time of the initial attendance at the unit.

The claimant and partner referred to left side of face drooping and a left weakness. It was accepted that there was some weakness of the left arm but there was a dispute about the onset. Again, the medical records were brief and not helpful.

The main questions for the court were – did the claimant have a right or left sided facial droop? What was the extent and timing of the weakness and were there symptoms of a TIA at the initial presentation? The claimant did not give any oral evidence, so the main witness became the partner.

There were discrepancies in the partner’s evidence. He asserted in oral evidence that the claimant had suffered left leg weakness, but this was not referred to in his witness statement or in the particulars of claim and although considered an honest witness, the judge preferred the doctors’ evidence. Further the partner gave evidence of a left sided facial droop which was not the case put forward. The pleadings suggested a right sided droop. The result was that the statement was at odds with the other documents.

Inconsistencies and inaccuracies between statements, pleaded cases and medical records give a negative impression to judges. There was no concern as to the honesty of the witness – just the problems that were apparent with the statement and evidence.

The remaining witness statement may have been significant in length and content but the issue on which the case ultimately failed was the description of the claimant’s presentation at a short attendance at the hospital before the stroke occurred.

Conclusions

Witness statements can be tricky, but it is important that they are accurate and reflect the actual case being put forward.

It is noteworthy in clinical negligence that often there are many valid complaints about medical and nursing care for whatever reason, but the pertinent issues that actually form the case quite often tend to be very specific. They are usually limited in time and circumstance. There may have been failings in the rest of the care but those are not relevant to the circumstances of the case. A witness statement that details all those failings in care in great detail may make an individual claimant feel that they are being heard but are likely to distract the reader who ultimately will be the judge.

Likewise a statement provided by defendants where the factual evidence is fairly short but there are detailed references to irrelevancies are of little assistance to the court.

It is also noteworthy that at the earlier stages in a case the parties, particularly the claimant, have an opportunity to provide detail about the issues based on their understanding of events. Such correspondence may be sent before the records are obtained and experts instructed. Further a claimant may provide details to the DWP, employers and various health professionals which may not be consistent with the final pleaded case or their statement such as in Watson v Lancashire.

A good witness statement can make an enormous difference to a case, but a poorly drafted witness statement at odds with the case or with lots of irrelevant comments, assertions and opinion may do quite the opposite.