Freeman, a case which turned on issues of fact, was a Clinical Negligence claim for damages for severe brain injuries arising from negligent advice provided by a midwife working at the Defendant’s hospital. The case illustrates the judicial treatment of (i) the burden of proof relating to the absence of record-keeping (ii) the weight to be given to oral evidence as compared to contemporaneous clinical notes, and (iii) the taking of disputed factual evidence remotely.
The claim was by the estate of CB who suffered an intrapartum brain injury due to placental abruption, developing several disabilities including cerebral palsy, microcephaly, and epilepsy. He died aged 12.
The Claimant alleged that at 10.30 a.m. on the morning of the birth, CB’s mother experienced sudden intense abdominal pain. CB’s father rang the maternity unit and informed them about the pain and was told to take CB’s mother home to bed and to take paracetamol. The pain continued to worsen, and CB’s mother went into A&E at the Defendant’s hospital at 12 noon, before being seen at 1.10 p.m. After urgent examination and emergency Caesarean section, CB was born at 1.59 p.m. with severe brain injury.
The Defendant denied that the phone call was made by CB’s father.
Both parties’ midwifery experts agreed that it would have been negligent for a midwife, if told that CB’s mother was in sudden intense abdominal pain, to fail to instruct her to come to the hospital immediately, particularly as further questioning would have elicited that she was 36 weeks pregnant and had suffered a previous placental abruption in 1993.
The parties’ obstetric experts agreed that if the alleged phone call took place and CB’s mother had been informed to come to the hospital immediately then CB would have been delivered within an hour of attendance: around 11.40 a.m., and on the balance of probabilities, CB would not have suffered brain injury.
Medical causation was agreed upon, and the value of the claim was also agreed at £500,000. The following issues of fact were to be determined: (i) whether there was a phone call (ii) whether intense pain (rather than a ‘twinge’) was reported, and if so (iii) whether the advice was to return home and take paracetamol.
Judge Tindal restated that Bolam v Friern Hospital [1957] applied to midwives as well as doctors (approved in Bolitho v City and Hackney Health Authority [1998] AC 232), noting that per Bolitho, the Claimant bears the burden of proving her case, including factual issues on the balance of probabilities.
Whilst accepting the burden of proof lies on the Claimant, counsel for the Claimant argued an inference should be drawn as the Claimant has been deprived of evidence due to the Defendant’s poor record-keeping practice of not recording telephone calls. Concerning this ‘missing record’ argument Judge Tindal accepted the approach to be applied was the approach in Shawe-Lincoln, developed in McKenzie considering “whether it is appropriate to draw an inference, and if it is appropriate… the nature and extent of the inference, will depend on the facts of the case”. Secondly, that “silence or a failure to adduce relevant documents may convert evidence on the other side into proof [this will depend] on the explanation given for the absence” (para 22).
Finally, when assessing the consistency of oral evidence with actual clinical records, Judge Tindal decided to apply the approach taken in Synclair and Manzi that he considered consistent with the approach taken on the facts in CXV, HTR, and Ismail (Our summary of Ismail is available here).
Judge Tindal found that both Mr. Orton and the Claimant were panicking due to the Claimant’s prior horrific experience of placental abruption, and that had the Claimant been asked how bad the pain was she “would have said words to the effect of ‘intense’ or ‘severe’” (para 82). However, given Mr. Orton was not thinking lucidly Judge Tindal found on balance he did not mention ‘intense’ or ‘severe’ at that juncture, however instead on balance he “would have said something to the effect that it was intense” (para 83). Further, the fact that pain relief was recommended corroborated Mr. Orton’s account as without being told there was pain, the midwife would not have known it was intense [and recommended pain relief] (para 84).
The judge accepted that if a midwife had been told the pain was ‘intense’ or ‘severe’ or equivalent it would have been negligent to not advise immediate attendance at the Maternity Unit (para 88, 89). Given the Claimant’s anxiety which prompted the call, she would have attended the Maternity Unit “relatively quickly and on the Obstetric evidence would have been seen urgently” (para 90). Had this advice been provided then Judge Tindal found “Callum would have been delivered around 11.40 a.m. … and so avoided his brain damage” (para 90).
Judge Tindal, therefore, upheld the claim awarding the Claimant the agreed sum of £500,000, providing vindication for the Claimant’s account of proceedings (para 93).
James Aldridge, a barrister from our Clinical Negligence team commented on the case as follows:
This case provides a helpful analysis of the legal principles concerning factual evidence in Clinical Negligence cases. The case surveys the law for extant cases where the Defendant has caused there to be a lack of contemporaneous documentation, considering the weight given to oral evidence as compared to contemporaneous clinical notes.
The judge reviewed Keefe v Isle of Man Steamship [2010] EWCA civ; Raggett v Kings College Hospital [2016] EWHC 1604 (QB); JAH v Burne [2018] EWHC 3461 (QB); Shawe-Lincoln v Neelakandan [2012] EWHC 1150 (QB) and McKenzie v Alcoa [2020] PIQR P6, and endorsed the approach in Shawe-Lincoln, namely: (i) whether it is appropriate to draw an inference, and if it is appropriate to draw an inference, the nature and extent of the inference, will depend on the facts of the particular case; (ii) silence or a failure to adduce relevant documents may convert evidence on the other side into proof, but that may depend on the explanation given for the absence of the witness or document.
Concerning the weight to be given to oral evidence as compared to contemporaneous clinical notes, the judge reviewed Gestmin v Credit Suisse [2013] EWHC 3560 (Com); Martin v Kogan [2020] FSR 3; Re B-M [2021] EWCA Civ 1371; Ismail v Joyce [2020] EWHC 3453 (QB); CXB (HHJ Gore QC); HTR v Nottingham University NHS [2021] EWHC 3228 (QB) (Our Summary available here); Synclair v East Lancs NHS [2015] EWCA Civ 1283; and Manzi v King’s College NHS [2018] EWCA 1882, and endorsed the approach in Synclair and Manzi. This approach notes that although a contemporaneous clinical record is inherently likely to be accurate, this does not generate a presumption in law that has to be rebutted. It is not, therefore, necessary to analyse what might be sufficient to displace a presumption of inherent reliability as this “is to make process of fact finding to owners and mechanistic”.
The case is additionally noteworthy because of the judge’s enthusiastic endorsement of the use of a video link to take factual evidence even when that evidence was hotly contested.
