EWJ 60 April 2025 web - Journal - Page 14
When is a Witness an Unreliable
Witness? A Case Report on MJF v
University Hospitals Birmingham
NHS Foundation Trust [2024]
EWHC 3156 (KB)
Thea Wilson looks at the recent High Court decision in MJF v University Hospitals Birmingham
NHS Foundation Trust [2024] EWHC 3156 (KB) and considers the perennial question of how a
court assesses the reliability of a witness in the face of conflicting medical records.
ing examination of the Claimant’s expert. The Court
denied permission to advance this “new theses” since
it put the Claimant and her experts at a material disadvantage. It was held that the Claimant had proven
that the breach of duty caused increased tension
which was the cause of the necrosis.
The Facts
In 2016, the Claimant, a young woman suffering from
cerebral palsy, autism, and epilepsy underwent the insertion of a PEG under sedation. Two days later she
was found unresponsive and underwent an emergency laparotomy which identified necrosis around
the gastrostomy site. As a result, the Claimant suffered
acute respiratory distress syndrome, sepsis, and multiorgan failure. She was left with a deteriorated level of
functioning.
Finally, the question of causation also turned to
whether the negligence had caused or accelerated the
deterioration in the Claimant’s condition and, if the
latter, to what extent. Here, the Defendant’s expert
was preferred as the Claimant’s expert was held to be
biased and acting as an advocate for his client’s case.
Indeed, Claimant’s counsel had not sought to rely on
his evidence in closing submissions. The Claimant’s
parents’ evidence on the extent of her disability prior
to the incident was substantially rejected. That of two
carers who made appropriate concessions based on
the medical records largely preferred. HHJ Kelly
made findings as to what had been accelerated and to
what extent, and what was caused by the negligence.
The Claimant alleged that there was a breach of duty
during the surgery as the PEG had been inserted
under too much tension. The Defendant contended
that the surgery was conducted with reasonable care
and that there had been a breakdown in tissue, a
recognised complication of the procedure. Much
turned on a factual dispute regarding the length of
skin to gastric lumen distance. The parties advanced
competing cases on causation and there was an additional dispute regarding the Claimant’s condition
prior to the surgery and likely condition and
progression but for the alleged breach of duty.
Witness Reliability
Like many clinical negligence cases, much of the case
turned on the Judge’s assessment of witness reliability
in the face of conflicting medical records. The Defendant’s doctor claimed his own records were inaccurate
and the Claimant’s parents and one of her carers did
not accept descriptions in some of the medical records
painting a picture of pre-incident deterioration.
In a hearing lasting six days in September 2024 HHJ
Emma Kelly sitting as a Judge in the High Court
heard evidence from five lay witnesses, the Defendant’s surgeon, and from six experts across three disciplines: General surgery, Gastroenterology, and
Neurology/Neurorehabilitation.
Judgment
The Court found that the determination of breach of
duty rested largely with an assessment of the credibility of the treating doctor’s evidence. His written evidence was “demonstrably incorrect” on his own oral
evidence and it was found that his recollection was
generally unreliable. The case advanced by the defendant amounted to a “cherry-picking of Dr A’s evidence
as to a lack of tension in circumstances where the court has rejected other material parts of his evidence”. HHJ Kelly
found for the Claimant on breach of duty.
HHJ Kelly observed the difficulty that the lay
witnesses were giving evidence about events that took
place eight-and-a-half years before the trial, and in
some points trying to recall details of progression further back than that. She noted that “the effect of the passage of time on memory is a factor that calls for consideration.”
The Judge surveyed the recommended approach in
Gestmin SGPS SA v Credit Suisse (UK) Limited [2013]
EWHC 3560 (Comm) and Carmarthenshire County
Council v Y [2017] EWFC 36. When considering contemporaneous medical records, she noted that several
were called into question by various witnesses, however noted that cases have adopted the approach that
weight should be attached to records and they should
be considered inherently likely to be accurate, not least
On causation, the Defendant had submitted several
alternative cases on what caused the tissue breakdown
and necrosis. The final position advanced by the
Defendant was not raised until day 3 of the trial, durEXPERT WITNESS JOURNAL
12
APRIL 2025
