Sheard v Cao Tri Do [2021] EWHC 2166 (QB)

Date

30th July 2021

Court

High Court

Key Issues

Findings of Fact, Breach of Duty, Septicaemia

Judge

HHJ Robinson

In Sheard v Tri Do the court made findings of fact in relation to conflicting witness evidence in a clinical negligence claim. The case emphasises that the correct approach to personal recollections of witnesses in fact-finding exercises is that set out in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013].

Introduction

The trial in relation to liability proceeded against the Defendant general practitioner.

On Sunday 21^st September 2014 the Claimant was seen by the Defendant. The Claimant contended that he presented with severe neck and shoulder pain, with a two-week history of a pyrexial viral illness. The Claimant’s case was that, given this history, the Defendant should have referred him to hospital; failure to refer amounted to a breach of duty.

On 23^rd September 2014, the Claimant was taken by ambulance to Birmingham Heartlands Hospital. The Claimant had an epidural abscess of his cervical spine and underwent decompression surgery lasting four and a half hours. The Claimant now is a resident in a care home, with mobility problems and problems with his upper limbs.

In relation to causation, it was the Claimant’s case that had he been referred to hospital by the Defendant on 21 September 2014, blood tests would have been undertaken which would have revealed that the Claimant was suffering from septicaemia. Further investigations would have shown the Claimant was suffering from a spinal epidural abscess causing compression of the spine. Had these investigations been undertaken the Claimant would have received decompression surgery much earlier and would have made a full recovery.

The Factual Evidence

HHJ Robinson had to determine whether the Claimant’s evidence was accurate and reliable (para 14). With respect to judicial determination of facts the parties counsel referred HHJ Robinson to Gestmin SGPS SA v Credit Suisse (UK) Ltd which stated that the correct approach is to “base factual findings on inferences drawn from documentary evidence and known or probable fact”, stressing the avoidance of the fallacy of equating witness confidence in their recollection with a reliable guide to the truth. Further, in relation to Ismail v Joyce (our summary available here) the Judge noted that “it does not necessarily follow that just because the complaint of a particular symptom does not feature in the record of a consultation, it was not, in fact, mentioned by the patient”.

There were four issues of fact (para 103): whether or not –

• the Claimant complained of unremitting pain in the neck and at the very least the left shoulder such that he could not sleep;
• the Claimant said he had been suffering from a viral-like illness for 2 or 3 weeks;
• the Claimant told the Defendant enough for the Defendant to record that the illness was accompanied by pyrexia and dizziness;
• the Claimant required help in removing his shirt.

Findings of Fact

With respect to the shoulder and neck pain leading to disruptive sleep, although the Claimant was a “poor historian” the presence of corroborating witness statements, together with a triage note satisfied HHJ Robinson that the Defendant must have known that the Claimant was unable to sleep. Point (ii) was satisfied through “a large measure of agreement” in the expert’s joint statement (para 64). Point (iii) was satisfied in the Claimant’s favour through a medical note recording: “unwell with viral illness – pyrexia and dizziness” in conjunction with better recall by the Claimant, permitting HHJ Robinson to infer that the Claimant had, in fact, told the Defendant enough for the Defendant to record accompanying pyrexia and dizziness. Finally (iv) was effectively admitted by the defendant and there was corroborating witness evidence.

Held:

Given these findings, HHJ Robinson found the Defendant to be in breach of duty for failure to refer the Claimant to hospital at the conclusion of the consultation on 21^st September 2014 (para 108).

Causation was satisfied, with HHJ Robinson noting that “even if the claimant had been referred with a history of persistent pyrexial illness accompanying his severe neck pain but in the absence of relevant signs and symptoms, blood tests would probably have been carried out” (para 129), which would have shown a raised CRP level such that an “MRI scan would have been conducted” (para 128).

Judgment was entered for the Claimant on the preliminary issue.

Our View:

James Aldridge

James Aldridge, a barrister in Outer Temple’s clinical negligence team, comments on the case as follows:

This case is an example of the approach of the court to disputed issues of fact in a clinical negligence claim where the recollection of the claimant differs from that of the clinician and the contemporaneous medical record.

The Judge was referred by counsel to Gestmin SGPS SA v Credit Suisse (UK) Ltd EWHC 3650 (Comm),  R (Dutta) v GMC [2020] EWHC 1974 (Admin), and Ismail v Joyce [2020] EWHC EW3453 (QB). These cases (helpfully summarised at paragraphs 15 to 17 of the judgment) identify that:

• it is an error to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate and (2) that the more confident another person is in their recollection, the more likely it is to be accurate;
• memories are not fixed, but are fluid and malleable, and can be affected by the process of preparing for trial and the taking of witness statements drafted by a lawyer;
• the best approach from the judge is to base factual findings on inferences drawn from documentary evidence and known and probable facts, with cross examination of oral testimony affording the opportunity to subject documentary record to critical scrutiny and to gauge the personality, motivations and working practices of the witness, rather than of what the witness recalls in particular conversations and events;
• it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth;
• where there is a disparity between the recollection of the witness and the contemporaneous record, especially where a particular symptom does not feature in the record of the consultation, it does not necessarily follow the symptom was not in fact mentioned by the patient: sometimes a doctor will obtain an extensive history make a very detailed record; sometimes, because of pressure of work or for whatever other reason, a doctor may take a less extensive history and will make a somewhat brief note; further, it is human nature for a patient not always to give precisely the same account of his or her symptoms to every doctor who examined him or her: much may depend upon the questions which are asked by the doctor, and equally, the patient is likely to emphasise and stress the symptoms which are troubling them the most at the particular time of the examination, and the medical records need to be scrutinised with these matters in mind.

Read the Judgment

Read the full judgment here.