Can you believe it? Is what the witness says true? Clinical Negligence and Witness Evidence

 

Paul Sankey - Enable LawMost clinical negligence cases do not depend on witness evidence about who said or did what. Cases normally turn on how experts interpret events: did care fall below a reasonable standard; did it cause loss; and how would the patient have fared anyway?

In a few cases witnesses’ memories of what was said or done are important. For instance a patient may allege that she did not give proper consent to treatment. Her memories and those of her doctor will be crucial.

So is it then just one person’s word against another? How does a judge go about deciding which witness to believe? Is it all down to performance in the box?
Some judges have tried to set out what makes for persuasive witness evidence. In a recent case (not a clinical negligence case) the court set out its approach .

The starting point: facts not in dispute

The starting point is the facts which are not in dispute. Some facts will be agreed. For instance, there may be no dispute that the patient was suffering from condition A, was at hospital B and saw Dr C. These facts form the background against for other evidence. Evidence which fits these facts may be persuasive. Evidence which does not will not.

The next layer: ‘incontrovertible’ evidence

Some facts which, whether they are agreed or not, cannot really be doubted. They are ‘incontrovertible’. They do not depend on anyone’s memory. They may appear in documents. Or there may be other hard evidence. For instance in a road traffic accident claim there may be skid marks on the ground or photographs showing where the vehicle ended up.

In clinical negligence claims the most important documents are usually medical records. Whilst not every entry may be correct, they are generally reliable. In most cases they were generally made at the time – during a patient discussion or as soon as it ended. They were not coloured by any later dispute. In fact doctors making notes are very unlikely to imagine that what they write could later be important evidence in a legal case. If they are typed into a computer system any later amendments can probably be tracked. So despite what people sometimes fear it is difficult now to alter notes.

As one of our senior judges said in an article cited in several judgments , “In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time”.

So it is generally difficult for patients to challenge medical records. It may be possible to persuade the judge that one note was wrong – possibly even two. But it would be very difficult to persuade the judge that they were all wrong.

Also, if there is more than one person recording fact x in the records on different occasions, it will be harder to persuade the court that they are both wrong.

So I suggest we can formulate two rules of thumb:

1. The more errors a witness alleges, the less credible her case; and
2. The more people alleged to have made errors, the less credible the case.

One exception may be where, because of a crisis, notes are not made until after the event. For instance during childbirth, particularly where things are going wrong, staff may not have time to record all that happens at the time. It may not be until after the baby is born that midwives and doctors write their accounts. They do not always get the timings quite right. And in claims for mismanaged births, timings are often very important.

But in general, to be persuasive witness evidence will need to be reasonably consistent with the medical records.

The last layer: it’s down to the witness…

Where the case comes down to which witness to believe, the judge may have a difficult task. The issue is rarely as simple as ‘do I think this witness is telling the truth?’ There are a number of issues the judge will need to consider. According to one judge , these are the issues:

1. Is this witness is a truthful or untruthful person?
2. Is the witness telling the truth on this issue? (Even liars sometimes tell the truth.)
3. Is the witness remembering correctly? We all have unconscious biases. They may alter our memories. Our memories are less reliable that we like to think.
4. Even if the witness believes that he or she saw ‘x’, is it more likely that he or she was mistaken?

In working out the answers to these questions, a number of things help. Obviously evidence which accords with the first 2 layers (facts not in dispute and incontrovertible evidence) will be most persuasive. Other factors are whether the account makes sense. Has the witness been consistent in the past: have they said similar things before? How has the witness behaved in relation to other matters? Finally how the witness actually behaves when giving evidence is important.
I would add that a simple story is usually more convincing than a complex one. That is not to say that complex stories are never true – but it is harder to persuade people they are true. We are all more inclined to accept things which are straightforward than things which are complex. Judges are no different. When listening to a client’s story, one question in my mind is always, ‘Can I explain this simply and convincingly to the judge?’

Stories which involve complex conspiracies are usually wrong. And the simplest answer to a question often the right one. (Philosophers call this ‘Occam’s razor’. William of Ockham (or Occam) thought that when faced with different answers to a problem you should normally go for the simplest.)

How important is ‘demeanor’ (how the witness behaves)?

How the witness behaves giving evidence is important. But it may not be quite as important as we tend to think. One judge puts it at the bottom of the list. The reason is that by the time the judge gets to consider demeanor, she will already have considered the points above.

Unfortunately one person may take a different view from another. We warm to some people. We do not warm to others. Psychologists talk about the ‘halo effect’. If we like someone, we are more likely to accept what they say. This is an unconscious bias. Being likeable is not the same as being truthful.

As one judge says, our views of people can be ‘distorted through the prism of prejudice’.

But how a witness presents in the box is important. For instance, does she answer the question or avoid it? Is she straightforward in answering? What are her mannerisms? Poker players look for ‘tells’ – body language suggesting a player is bluffing. Our body language often says as much as our words.

Conclusions

So can you believe what a witness says?

More importantly will the judge believe it? I have suggested – based on some recent cases – some factors to consider and have added some of my own. The starting point is fit with facts not in dispute. The next issue is fit with ‘incontrovertible’ evidence, and in most clinical negligence cases the medical records. Only then do you come to questions like, ‘Is this witness honest? Is she telling the truth as she sees it?
For those who like diagrams, here is one way of looking at this.

Paul Sankey is a partner in the medical negligence team at Enable Law, and has contributed to both legal and medical journals. He can be found on Twitter as @pauljsankey, and can be emailed here.