This blog was co-authored by Boitumelo Phillips, Candidate Attorney.

The matter between MJF and University Hospitals Birmingham NHS Foundation Trust in the English High Court provides answers to how a court will assess the reliability of witnesses in the face of differing medical records.

In March 2016, the claimant had a gastrostomy feeding tube inserted (PEG). Two days later the claimant was found unresponsive by her caregiver and was rushed to the hospital for an emergency laparotomy. This emergency laparotomy showed necrosis (dead tissue) around the PEG site. Subsequent to the necrosis, the claimant suffered acute respiratory distress syndrome, sepsis and multi-organ failure. The claimant alleged that there was a breach of duty during the surgery because the PEG was under too much tension when it was inserted.

The defendant’s case was premised on the surgery being exercised with care and that the complications that arose from it were a recognised complication of the surgery. The main point of contention was the factual dispute regarding the length of skin to gastric lumen distance, which is important to avoid tension when fitting a PEG.

The court found that determining the breach of duty that the claimant alleged, rested on the assessment of the credibility of the doctor who treated the claimant. The doctor was found to be unreliable because his written record of the proceedings was incorrect, and his recollection of the patient’s case was poor. The defendant had provided defences but advanced their defence that local site damage is a common complication during day three of the trial. Permission to do so was denied by the court because it would disadvantage the claimant’s case. The court held that the claimant had proved that there was a breach of duty which caused the tension and resulted in the necrosis of the PEG site.

Further, these index events occurred 8 and a half years ago, therefore, the passage of time is a factor that has to be considered when witnesses are giving evidence. The court further cited Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) where the court provided that the best approach by a judge is to place little reliance on witnesses’ recollection of events and rather place greater reliance on documentary evidence or probable or known facts.

Reliance on documentary evidence is further reinforced in Manzi v King’s College Hospital NHS Trust [2018] EWCA Civ 1882 wherein the court states that clinical records are made in line with professional duties but also for the ongoing care and treatment of a patient. That is why medical records are likely to be accurate.

Witness reliability assessment by the court is paramount in such cases should there be medical records that do not support the witness’s testimony. As seen in this case, the treating doctor’s poor recollection and conflicting evidence were a clear indicator that the claimant’s case was substantially more probable.