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When is a witness an unreliable witness? A case report on MJF v University Hospitals Birmingham NHS Foundation Trust [2024]
- May 1, 2025
- Latest Journal
Thea Wilson looks at the recent High Court decision in MJF v University Hospitals Birmingham NHS Foundation Trust [2024] EWHC 3156 (KB) and considers the perennial question of how a court assesses the reliability of a witness in the face of conflicting medical records.
The Facts
In 2016, the Claimant, a young woman suffering from cerebral palsy, autism, and epilepsy underwent the insertion of a PEG under sedation. Two days later she was found unresponsive and underwent an emergency laparotomy which identified necrosis around the gastrostomy site. As a result, the Claimant suffered acute respiratory distress syndrome, sepsis, and multi-organ failure. She was left with a deteriorated level of functioning.
The Claimant alleged that there was a breach of duty during the surgery as the PEG had been inserted under too much tension. The Defendant contended that the surgery was conducted with reasonable care and that there had been a breakdown in tissue, a recognised complication of the procedure. Much turned on a factual dispute regarding the length of skin to gastric lumen distance. The parties advanced competing cases on causation and there was an additional dispute regarding the Claimant’s condition prior to the surgery and likely condition and progression but for the alleged breach of duty.
In a hearing lasting six days in September 2024 HHJ Emma Kelly sitting as a Judge in the High Court heard evidence from five lay witnesses, the Defendant’s surgeon, and from six experts across three disciplines: General surgery, Gastroenterology, and Neurology/Neurorehabilitation.
Judgment
The Court found that the determination of breach of duty rested largely with an assessment of the credibility of the treating doctor’s evidence. His written evidence was “demonstrably incorrect” on his own oral evidence and it was found that his recollection was generally unreliable. The case advanced by the defendant amounted to a “cherry-picking of Dr A’s evidence as to a lack of tension in circumstances where the court has rejected other material parts of his evidence”. HHJ Kelly found for the Claimant on breach of duty.
On causation, the Defendant had submitted several alternative cases on what caused the tissue breakdown and necrosis. The final position advanced by the Defendant was not raised until day 3 of the trial, during examination of the Claimant’s expert. The Court denied permission to advance this “new theses” since it put the Claimant and her experts at a material disadvantage. It was held that the Claimant had proven that the breach of duty caused increased tension which was the cause of the necrosis.
Finally, the question of causation also turned to whether the negligence had caused or accelerated the deterioration in the Claimant’s condition and, if the latter, to what extent. Here, the Defendant’s expert was preferred as the Claimant’s expert was held to be biased and acting as an advocate for his client’s case. Indeed, Claimant’s counsel had not sought to rely on his evidence in closing submissions. The Claimant’s parents’ evidence on the extent of her disability prior to the incident was substantially rejected. That of two carers who made appropriate concessions based on the medical records largely preferred. HHJ Kelly made findings as to what had been accelerated and to what extent, and what was caused by the negligence.
Witness Reliability
Like many clinical negligence cases, much of the case turned on the Judge’s assessment of witness reliability in the face of conflicting medical records. The Defendant’s doctor claimed his own records were inaccurate and the Claimant’s parents and one of her carers did not accept descriptions in some of the medical records painting a picture of pre-incident deterioration.
HHJ Kelly observed the difficulty that the lay witnesses were giving evidence about events that took place eight-and-a-half years before the trial, and in some points trying to recall details of progression further back than that. She noted that “the effect of the passage of time on memory is a factor that calls for consideration.”
The Judge surveyed the recommended approach in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) and Carmarthenshire County Council v Y [2017] EWFC 36. When considering contemporaneous medical records, she noted that several were called into question by various witnesses, however noted that cases have adopted the approach that weight should be attached to records and they should be considered inherently likely to be accurate, not least because failing to make accurate notes is a breach of professional duties.
When assessing the Defendant doctor’s evidence she found that the claim he now advanced that the records were inaccurate was not reliable because:
• The explanation for the error was illogical
• The inaccuracy was a breach of the GMC’s Good Medical Practice.
• If he had known of an issue at the time (which he now claimed he did), he could have clarified in a free text box. That he didn’t is a cause for concern.
• At times in the witness box he failed to answer the questions put to him.
• At other times his evidence was internally inconsistent.
• At one point he conceded an error in his recollection of events, which highlighted the fallibility of accurate memory after so many years.
• The inaccuracy of the record was not mentioned in an investigation into the incident done only a few months later or in the letter of response three years on. It was not raised until pleaded in the defence, 7 years after the incident, 5 years after the letter of claim.
In respect of the Claimant’s witnesses’ evidence on the Claimant’s level of functioning.
• The way the statements had been prepared, with identically phrased paragraphs in three different statements, was unsatisfactory and undermined the cogency of the evidence of those witnesses.
• There was a startling difference between the rosy picture painted and the contemporaneous medical records was resolved in favour of the records. HHJ Kelly found that “It is far less likely that multiple medical professionals all made errors in their notetaking” than that the Claimant’s witnesses’ current recollections were in error. This undermined the evidence of these witnesses’ carers regarding the level of functioning.
Learning points for practitioners
Practitioners can take the following useful guidance from the Judgment:
• When witnesses, lay or otherwise, disagree with contemporaneous medical notes, take care. Whilst records are not infallible, there is a high risk they will be preferred.
• When disputing such records, the earlier differences are raised, the more likely the witness is to be preferred.
• Where consistent records are made by multiple different practitioners, a Court will be slow to prefer a witnesses’ recollection to the records.
• If you (or your expert) seek to amend your case, the earlier the better and no later than at joint statements. The Court is likely to refuse any amendment which does not give the medical experts sufficient time to consider and respond to it.
• Multiple amendments are also likely to undermine the credibility of the case advanced.
• The Judge commented on the unnecessary amount of medical records, 27 files, the majority of which were never referred to. The Court will approve of at least agreeing a key bundle of medical records with the other side, if not an attempt to filter out irrelevant medical records in a case where records are so extensive.
• The Judge commented on the assistance the Parties gave by arranging same-day transcription. This should be arranged, if possible, for the benefit of both Parties, as well as the Court.
Author
Thea Wilson
Call 2008
Areas of expertise Clinical Negligence, Personal Injury, Inquests, Fraud, Costs, Industrial Disease, Credit Hire
Email: wilson@12kbw.co.uk
www.12kbw.co.uk/barristers/