CXB v North West Anglia NHSFT: clinical records -v- witness evidence?

This clinical negligence claim of CXB v North West Anglia NHS Foundation Trust [2019] EWHC2053 (QB) involved a dispute about documentary evidence. In this case, the court found that there was no general principle that the reliability of clinical records should be preferred over witness evidence, simply because of the unreliability of a witness’ recollection of events.

However, the court did ultimately find in favour of defendant because there was insufficient evidence to suggest that the clinical records were unreliable or incorrect.

Facts

The claimant brought an action for damages against the defendant NHS Trust for her injury at birth and the mismanagement of her mother’s pregnancy.  The hearing centred on a single issue; had the mother requested a delivery by elective caesarean section.

The defendant accepted that if the mother had chosen an elective caesarean section, her choice should have been agreed by the clinicians and the injury to the claimant would have been avoided.

The claimant’s mother’s evidence was that she had elected to have a caesarean section, but that this election was rejected.  However, none of the clinical notes made by doctors or midwives recorded any such requests or related discussion.  The defendant focused on a medical note of a consultation made during the pregnancy.

In a note of a consultation with a senior registrar at 36 weeks, the registrar recorded: “patient keen for IOL” (Induction of labour). “IOL booked at term. Above discussed with [the Consultant in charge of the clinic]”. No mention of a request for a caesarean section was recorded.

The claimant’s mother and her husband maintained that she had elected to have a caesarean section and disputed the accuracy of the note. The claimant’s mother’s evidence was that during that appointment, she requested a caesarean section and that request was refused.   The defendant invited the court to prefer the reliability of the clinical records, in particular, the entry which contemporaneously reported the claimant’s mother’s wishes over her witness evidence.

The defendants relied on Leggatt J’s discussion of the unreliability of human memory in Gestmin SGPS SA  v Credit Suisse (UK) Limited [2013] EWHC 3560.

“The best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”

The decision

HHJ Gore QC (sitting as a Deputy High Court Judge) accepted that the claimant had given her evidence honestly. However, he rejected it on the basis that it was not entirely consistent and had changed over time. His decision was based on the totality of the evidence, rather than any general principle that the clinical records should be preferred.

Comment

In clinical negligence cases there is no general principle that the judge should prefer the reliability of clinical notes and records to witness evidence, which is subject to the unreliability of human memory.

In CXB, HHJ Gore QC recognised that the written record could be overcome if he was satisfied that the contrary evidence of the claimant’s mother and her husband was reliable.  In this case, he was not. However, he raised concerns about the ever-increasing number of judgments relying on Gestmin which gives the impression that it is authoritative.  He described this as being “fraught with danger”.

The title of this blog questions whose evidence should be favoured when there is a dispute about the facts of a case. Clinical records and notes do not automatically override lay evidence. However, the evidence (which is equally applied when considering written records, oral evidence and witness evidence) must be looked at in totality and, as with all evidence, the case of CXB highlights the importance of consistency.