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Memory and Clinical Negligence Trials: Tressider v Royal Cornwall Hospitals NHS Trust - Tamar Burton, Cloisters

21/07/15. In Tressider v Royal Cornwall Hospitals NHS Trust [2015] EWHC 1262 (QB) the court had a single liability issue to determine: did a child present with a visible scoliosis of the spine in November 2000 and November 2001?

The orthopaedic experts agreed that had the scoliosis been visible on either consultation there was a causative breach of duty. The court was therefore considering a factual dispute between the child’s parents and an eminent orthopaedic surgeon 15 years after the event.

The Claimant’s recollection of the first consultation was limited; he was 7 years old at the time. There were no clinical notes of the consultation. A follow-up letter to the Claimant’s GP and two notes from earlier GP assessments, which suggested scoliosis, were the only contemporaneous documents. In relation to the 2001 consultation the judge found it “remarkable” that no individual present, including the adults, had any recollection of the consultation.

Lack of memory raises specific problems for practitioners in clinical negligence cases. While defendant clinicians are able to rely on what their usual practice is, claimants (or their litigation friends) must rely on their memories and any available contemporaneous notes.

This issue of memory is often especially problematic in cases involving children or those with a disability where the disapplication of the limitation period can have an adverse impact on the parties’ recollection. An extreme example is the case of Headford v Bristol and District Health Authority [1995] 6 Med LR where a claim for a brain injured child was permitted 28 years after the impugned surgery pursuant to s. 28 Limitation Act 1980.

Claimant practitioners in cases involving catastrophic injuries are well-accustomed to constructing a positive case in the absence of direct memory. However, in cases where a claimant has capacity and the ability for recollection but is unable to remember the index event evidential gaps arise.

In spite of these problems, Tressider demonstrates that the absence of recollection is not necessarily insurmountable for a claimant. The judge found that the Claimant and his parents were truthful witnesses and resolved factual disputes in their favour. Her Honour Judge Deborah Taylor noted that it would be more helpful to their case, “and more in keeping with untruthfulness,” if the parents were able to make allegations about the second consultation with the spinal orthopaedic surgeon.

In another 2015 case, FB v Rana & Princess Alexandra Hospital NHS Trust [2015] EWHC 1536, the court also had to make a factual determination in the absence of recollection by the parties. The issue was the presentation of a 13 month old when she developed pneumococcal meningitis. As in Tressider, Mr Justice Jay found that the mother’s lack of recollection suggested that she was “basically an honest witness.” However, he gave her evidence little weight on the basis that hindsight had tainted the rest of her evidence. He was impressed by the evidence of clinicians and cautioned against a view that sparse contemporaneous notes suggested an inadequate consultation: “it is wrong to subject these quite scanty notes to overly rigorous, logical scrutiny … in my view a barely adequate, or even inadequate, note does not necessarily march arm-in-arm with a barely adequate, or inadequate, examination.”

The second issue that frequently arises for practitioners is inconsistent recollection. In Tressider, the mother’s witness and oral evidence contained an inconsistency about how pronounced her son’s curvature was and whether she had undergone an examination of her own spine. On the facts of that case, these inconsistencies were not material. However, while some judges may have been willing to overlook inconsistencies made by lay witnesses, others will not. In another 2015 clinical negligence case concerning the delay in diagnosis of pneumococcal meningitis, Wake v Johnson [2015] EWHC 276 (QB), His Honour Judge Collender QC found that the parents had unconsciously reformulated their recollection of their child’s presentation and the advice given. The inconsistencies here were far more fundamental than in Tressider. As in FB v Rana & Princess Alexandra Hospital NHS Trust¸ this judge was impressed by the defendant GP’s careful evidence and that “he did not purport to have a clear recollection of the consultation”.

For claimant practitioners considering the pitfalls of lay witness memory, these challenges may be met by taking detailed and thorough witness statements at a very early stage as well as asking for any contemporaneous documents such as diaries or letters of complaint to assist a witness’s recollection.

Simon Dyer of Cloisters appeared for the successful Claimant in
Tressider v Royal Cornwall Hospitals NHS Trust
[2015] EWHC 1262 (QB).

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