A recent High Court case (Watts v The Secretary of State for Health [2016]) has raised a number of issues, including the reliance that can be put on a claimant's accounts of the events in question, and the expertise of expert witnesses. The case concerned a baby born in 1993 with a right-sided Erb's palsy caused, it was claimed, by excessive traction on the head or neck when shoulder dystocia arose. The claim alleged that the injured right shoulder was anterior at birth; the defendant responded that it was in a posterior position. That discrepancy had to be resolved by a consideration of the evidence.
As is usual after such a long gap, the midwives concerned had no recollection of events and were dependent on the clinical case notes, which stated:
‘Presentation & Position — at onset Cephalic ROA; at delivery Cephalic ROA.’
The claimant's case relied on establishing that the injured right shoulder had been in an anterior position. However, after considering the documentation and hearing from various witnesses, it was concluded that the injured shoulder had been in a posterior position and that the injury had probably been caused by traction against the mother's sacral promontory, a rare but recognised birth complication (Royal College of Obstetricians and Gynaecologists, 2012) and something that the midwives could not have known about prior to the full expulsion of the baby. Nevertheless, the birth injury was quickly apparent, and the baby's father met with the hospital's chief executive a few weeks after the birth. In his witness statement, the baby's father claimed:
‘The Chief Executive was doing everything she could to avoid admitting responsibility for what had happened… I was so angry that I wanted to make a claim at that time. However, (my wife) was traumatised by the whole thing and did not want to take matters further so I respected her wishes.’
Delay in bringing the action was understandable in the circumstances, but investigating far-distant events is complicated (Symon, 2001). The mother had herself drafted a 10-page letter of complaint at around that time, but for whatever reason she did not send it, and it was only found years later when legal proceedings were initiated. The letter, which detailed her recollections of what had occurred during the birth, as well as her thoughts on what she had since discovered about Erb's palsy, stated:
‘I felt myself being pulled down the table and someone leaning over my stomach. My husband was holding on to me. My baby girl was born…’
However, in her witness statement given considerably later, she wrote:
‘I cannot remember much about what happened in the delivery suite as I was in so much pain and the whole experience was awful for me but I do remember a lot of panic and confusion around me… I recall the lady midwife… was definitely pulling on (my baby) … I cannot remember the amount of pulls, but there were a number of them… I definitely felt multiple forceful pulls.’
Under cross-examination, the mother conceded that her almost contemporaneous account had not included such details. Noting this, the judge observed:
‘The parents have lived with what happened to their daughter at birth for over twenty-three years. The effect of that on them is incalculable. They must have relived their experience many times over the years, and there is a danger that events can seem even more real and vivid with the passage of time… one's initial memory can over time become encrusted with additional detail which morphs into it.’ (per Hughes J @ 32)
The question here is whether an account written close to the events in question is more reliable than a later account, which may be influenced by subsequent knowledge or experience. While the parents' sincerity and honesty was not in doubt, the accuracy of their recall was. The judge noted:
‘The mother's account as to the pulling goes much further than her draft letter written much closer in time to the events… The parents' evidence must in my view, be treated with caution, and its reliability assessed in the context of the evidence as a whole.’ (per Hughes J @ 33, 37)
‘ All expert witnesses must be prepared to undergo cross-examination which may call their knowledge or skill into question ’
There are several other unusual features of this case, chief of which is the judge's criticism of the claimant's expert witness. Noting that the defendant's lawyer had taken the witness to task over her evidence, the judge added:
‘These are serious criticisms, but I regret to say that they are justified. I found (her) to be a distinctly unimpressive witness, with a serious lack of knowledge of clinical practice in 1993 and a worrying lack of appreciation of the importance of basing her opinions by the standards pertaining at that time.’ (per Hughes J @ 54, 55)
At issue was her reliance on a 1993 American textbook in judging whether or not the shoulder dystocia had been managed according to standards considered acceptable at the time. To support their evidence, expert witnesses may refer to standard texts or to protocols which suggest or stipulate practice. The cited text book noted that the McRoberts manoeuvre should be adopted in cases of suspected shoulder dystocia. However, the obstetricians who were cross-examined noted that this manoeuvre had not been adopted in the UK in 1993. It emerged in the hearing that even a 1995 UK obstetric textbook made no mention of the McRoberts manoeuvre. The point is that what we know now is irrelevant if it was not known and held to be acceptable practice at the time in question. As the judge noted,
‘You must not look with 2016 spectacles at what happened in 1993.’ (per Hughes J @ 46)
The midwives could, therefore, not be criticised for failing to adopt a procedure which was not accepted nor common practice in the UK at the time in question, even if it had been adopted elsewhere. The judge further criticised the expert witness for appearing ‘to demonstrate a worrying lack of understanding of some of the basic anatomical principles' (@ 62), and also stressed how her witness report might have been unhelpful to the claimants:
‘The approach adopted… to what was a fundamental part of her report was, in my judgment, unbalanced and highly misleading. The misfortune of such an approach is that it may provide a claimant with an unrealistic hope of success or fatally weaken what might otherwise be a valid claim had the expert's report been thoroughly researched and presented.’ (per Hughes J @ 61)
This case has highlighted a number of issues. The long delay between event and legal hearing is a recognised complicating factor, but it does raise the question over accuracy of recall when emotive issues are involved. How are the courts to decide whether recall is accurate? The practitioners had no personal memory of the events, and had to rely on the clinical case notes. These asserted that the baby was in a certain position which she could not have been in if the parents were correct about the cause of the injury. The judge took pains to commend the parents' integrity, but the mother's version of events in her formal statement went beyond what she had recorded much closer to the events in question, raising doubts about the later statement's accuracy.
That the claimants' expert witness was so heavily criticised by the judge further undermined the claim. It is in the nature of an adversarial legal system that one side's version of events will be preferred over the other side's version, and expert witnesses must be prepared to undergo cross-examination which may call their knowledge or skill into question. Most experts perform this role because they want to assist (it's all but impossible to pursue claims without them); subjecting yourself and your reputation to this kind of scrutiny is not for the faint-hearted.