Failes v Oxford University Hospitals NHS Trust [2020] EWHC 3333 (QB)
Along with Ismail and Dutta considered by Jeremy Hyam QC, this decision of HHJ Cotter QC also provides a good example of the approach courts will take to the reliability of medical records and witness testimony.
On 9 June 2015, the Claimant underwent surgery to remove a tumour from within his spinal cord. By 15 June 2015 the Claimant had deteriorated such that he was paralysed from the waist down. The Claimant’s case was that by 11 June he had deteriorated such that he should have received emergency surgery and, if he had, he would have avoided the injury. The Defendant’s case was that the Claimant was in fact progressively improving but suffered a sudden deterioration on 15 June.
As noted at [12], there was a single factual issue at the heart of the case: when did the Claimant’s condition deteriorate?
As a result, the factual evidence was key in this case. At [28] HHJ Cotter QC set out his approach to factual findings, noting his previous comments in Busby v Berkshire Bed Company Limited [2018] EWHC 2976 (QB) that ultimately the court has to stand back and consider whether the suggested explanation is more likely than the alternative explanations and that the court has to approach the exercise of fact finding as fitting together a sufficient number of jigsaw pieces to allow the full picture to be seen (even if all the jigsaw pieces cannot be fitted together).
The Claimant relied on neurological observations recorded in a chart entitled ‘laminectomy observations.’ These observations showed a deterioration in the afternoon of 11 June 2015 which was not brought to the attention of any doctor and, the Claimant argued, should have been.
The Defendant did not call any of the 24 nurses who made the entries in the laminectomy chart. The Claimant asked the judge to draw an adverse inference on that basis [31] and, as a result, the Defendant’s solicitor had to put in a witness statement to explain why no such evidence had been obtained. Ultimately the judge did not draw an adverse inference, noting at [33] that:
“I did not approach the relevant entries in the laminectomy chart as I may other entries in documents in different contexts. Rather I took as a starting point a presumption that they accurately recorded the belief of the relevant nurse after some form of investigation or assessment.”
The judge then undertook a detailed analysis of the medical records, the Root Cause Analysis, factual and expert evidence pertaining to the Claimant’s presentation in the days after his surgery. Ultimately, the experts agreed [120] that apart from the laminectomy chart, all of the other evidence suggested that the Claimant was making reasonable progress following the surgery on 9 June before an acute deterioration on the 15 June. The judge also attached significant weight to the Claimant’s own account of his condition, noting at [122]:
“So often over 35 years of involvement in clinical negligence work I have seen complaints from Claimants that the nursing or clinical staff did not take sufficient notice of what they were saying about issues with their bodies ; that judgments were made or not made without adequate weight being attached to the history or issues raised by the person actually experiencing the relevant symptoms… What a person says about what they think of pain, discomfort etc is vitally important as they can usually put it into a context or normality or relevant recent history whereas a clinician (absent objective testing) cannot do so. Indeed even with objective testing it will often still be the case that what a patient says, and/or can actually do, that should usually have primacy within a clinical assessment.”
The judge also considered the limitations of the laminectomy chart in terms of the way in which observations were recorded (e.g. the legs and arms were treated as a whole, and there was no scoring system, only the categories of normal power, mild weakness and severe weakness). Overall, he found that the presumption of accuracy of the laminectomy chart had been displaced.
Overall, the judge concluded that, in fact, the Claimant was improving until 15 June when he deteriorated catastrophically. As a result, had he been reviewed by the consultant on 11 June, subsequent detailed neurological examination would not have found any material deterioration in the lower limbs and the Claimant would not have been returned to surgery. The Claimant’s claim therefore failed.
Comment
Ultimately, the claim appeared to hinge on the laminectomy chart. The Defendant was able to successfully argue that it was unreliable and to displace the presumption of accuracy that generally attaches to medical records.
