Determining factual disputes in clinical negligence cases

Often a situation arises in clinical negligence claims where a defendant asserts that information was provided to a claimant which is not documented in the records. If a claimant denies that such information was imparted, then how will the Court determine this type of factual dispute?

Introduction

Clyde & Co LLP successfully represented the Defendants in the case of SD v (1) AR (2) JT [2024] EWHC 2444. 

The Claimant had undergone an Anterior Lumbar Interbody Fusion (ALIF) procedure on 5 September 2018. It subsequently transpired that the Claimant had sustained a bowel injury, and it was alleged that (1) the Claimant was not warned about the risk of bowel injury; and (2) the procedure itself was performed negligently. 

It was the First Defendant’s evidence that whilst not recorded in the notes he had informed the Claimant of the risk of bowel injury in clinic on 24 July 2018 and 28 August 2018. He had no direct recollection of this but relied upon his standard practice. 

When determining whether the Claimant had been warned about the risk of bowel injury His Honour Judge Gargan assessed the reliability of the evidence provided by the material witnesses and set out some helpful guidance on the factors that the Court may consider when undertaking this task. 

Guidance

The following considerations were referenced by His Honour Judge Gargan:

• the inferences that should be drawn from the failure to record the warning in writing;
• the extent to which any such warning formed part of the First Defendant’s ordinary practice; 
• whether the court can be confident that the First Defendant followed his ordinary practice in this case; 
• the time between the index clinical appointments and trial (in this case a delay of almost 6 years); 
• the circumstances in which the discussions took place; 
• the extent to which the witness’ recollection is reliable in relation to matters where there are contemporaneous documents; and 
• any other factors which may bear upon the reliability of the particular witness.

Application

With reference to the above factors the following was found in this case:- 

• the failure to record a risk on the consent form is potentially a determinative factor when deciding whether a clinician had given the relevant warning;
• the First Defendant was found to be an honest witness and thus his evidence was accepted that it is his standard practice to generally provide a warning of bowel injury;  
• there was some conflicting evidence from the First Defendant as the nature of the discussions in July 2018 which made his evidence about whether his standard practice was followed less convincing;  
• the time (in combination with the trauma which the claimant experienced following the surgery) were the reasons why the claimant was unable to provide a reliable account of what was said in July and August 2018 – see below; 
• the claimant attended two appointments with the defendant, the first with her partner and the second on her own. It was considered helpful to have the support of a partner or friend at consultations which are likely to involve discussions about complex surgery. It was not an indication that someone is suffering difficulties and needed assistance;
• the claimant’s account was likely to be unreliable as (a) she failed to address the risks discussed in July 2018 in her witness statement. The evidence of her partner was that some risks were discussed at this time; (b) the claimant could not recall whether she had been advised about the risk of PE and DVT. These were risks which were recorded in the records; (c)  she denied being told by the Second Defendant of the risk of bowel injury immediately prior to the operation in September 2018 despite a clear reference to the same in the records; and (d) the way she gave her evidence suggested that she was recalling what would have happened rather than what actually happened; 
• The Claimant accepted that some risks were discussed which were not recorded in the records such as the risk of heart attack, stroke and paralysis. 

After considering all the evidence the Court found that the First Defendant did provide an adequate warning and thus discharged his duty to warn the Claimant of the risk of bowel injury. 

It should be noted that the Court also found that the Claimant would not in any event have postponed or cancelled the surgery had different information been imparted. 

Furthermore, it was found that the operation was performed to a reasonable standard. 

Discussion

The Court stated that the failure to record a risk in the records is potentially a determinative factor when deciding whether a clinician had given the relevant warning. This underlines one significant  difficulty defendants face in consent cases. i.e. if the warning is not recorded the default position the Court may take is that the warning was not given. 

Notwithstanding the above there is still opportunity and scope for a defendant to rebut this presumption. Much will depend upon the quality of the Claimant’s evidence (both written and oral) and a forensic review of the records to determine areas for challenge. In this case the Judge was particularly struck by the fact that the Claimant could recall matters discussed which were not recorded in the records which in turn provided support to the First Defendant’s assertion that his standard practice was followed.