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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283 (16 December 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/1283.html Cite as: [2015] EWCA Civ 1283 |
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ON APPEAL FROM MANCHESTER COUNTY COURT
Mr Recorder Simon Parrington
2YL63462
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE FLOYD
and
MR JUSTICE COBB
____________________
Mr Robert Synclair |
Claimant/ Respondent |
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- and - |
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East Lancashire Hospitals NHS Trust |
Defendant/Appellant |
____________________
Darryl Allen QC (instructed by Stephensons Solicitors) for the Respondent
Hearing dates: 19 November 2015
____________________
Crown Copyright ©
Lord Justice Tomlinson:
Introduction
The background and the facts
"2. Robert Synclair, the Claimant, is a married man who has worked in the construction trade for most of his working life. In August 2009 he was approaching his 57th birthday. In 1999 he was diagnosed with rectal cancer for which he underwent an abdominal perineal resection at RBH. As a result of the resection, an end colostomy was fashioned with a stoma on the left side of the abdomen to which a colostomy bag was fitted and, subsequently managed by Mr Synclair.
3. On or about 20 June 2009 the Claimant attended RBH suffering from abdominal pain with a history of a non-functioning stoma. He was diagnosed as suffering from a parastomal hernia with sub-acute obstruction and was listed for surgery. In fact, he was not admitted for surgery until 25 August (for reasons unconnected with his claim) when he underwent laparoscopic repair of the parastomal hernia with mesh repair.
4. The repair was performed at RBH by Mr Patrick Scott, assisted by Mr Noman Zafar and another more junior member of staff on the morning of 25 August 2009. Following the operation he was returned to a ward. It is alleged by the Claimant (his primary case) that the operation was performed negligently and that as a result he has been caused loss and damage.
5. On 26 August, whilst remaining at RBH, the Claimant was seen by Mr Scott on his ward round. Mr Scott recorded at that ward round that Mr Synclair would be discharged on the next day.
6. On 27 August, the day of the proposed discharge, Mr Synclair was seen at 8.10am by Mr Zafar. Following that ward round, and later that morning, Mr Synclair was discharged from the hospital. His wife collected him and took him home. Mr Synclair contends that at the ward round that morning he was in some pain, feeling sick and his stoma was dark in colour rather than the bright pink that he was used to. It is Mr Synclair's secondary case that he told Mr Zafar that he was concerned about the colour of the stoma but that Mr Zafar advised him that it was merely bruised and that he should not worry; Mr Synclair contends that he should not have been discharged and that his concerns should have been heeded and attended to and that he should not have been discharged that morning.
7. Between 28 August and 30 August, the Claimant having returned home, contends that his pain increased until he could bear it no more. At about 1.00am on 30 August Mr Synclair's wife, Mrs Joanne Synclair, drove him to RBH A&E. On arrival he was seen by a junior doctor who referred the Claimant to a Consultant Surgeon, Mr Robert Watson.
8. On the evening of 30 August Mr Watson performed an operation to remove the stoma, which was by then necrotic and perforated, resect back to the proximal transverse colon and create a new stoma on the right side of the abdomen.
9. Mr Synclair was eventually discharged on 14 September. Since this procedure, the Claimant's stoma/bag function has been frequent, loose and unstable."
"39. I now turn to the Claimant's secondary case. Following the operation Mr Synclair remained at RBH for 2 days before his discharge. It is common ground that on 26 August Mr Scott visited Mr Synclair on his ward round. By then the Claimant contends that the stoma had changed colour. He says that when he changed his bag he noticed that the stoma didn't look the same as it usually did; it was a darker colour. On the morning of the ward round on 26 August Mr Synclair states that he was still in some discomfort and that he had some niggling pain but that he put this and the darker colour of the stoma down to the very recent operation. He specifically states that he did not bring the colour of the stoma to Mr Scott's attention. Indeed, the only record as to the condition of the stoma shows that the stoma was stated to be "functional", there being no note as to its colour. In his evidence Mr Synclair said that he did not think, although he could not be sure, that Mr Scott examined the stoma. Mr Scott said that he did check the stoma. He told the court that in the absence of any note as to its colour it should be assumed that the stoma was "normal".
40. That night, at 20:30 the records reveal, inter alia, "has passed small amount of flatus via stoma this pm - no bowel movement..." Later at 01:00 on 27 August the record reveals "mobile". "Peppermint cordial given for windy pain". "Still nil via stoma…didn't want codeine" "(drug) given for some nausea. Quiet this evening."
41. By the time Mr Zafar visited on his ward round at 08:10 Mr Synclair was, he said in pain and discomfort and feeling nauseous. He said that he had a sickly feeling as though his stomach had been "bloating up", and he felt very sick. He also said that the stoma was a dark red/brown colour which he repeatedly described as the colour of "raw steak that had been left in the fridge overnight and had developed a darkened appearance".
42. There is a clear disparity as to the events that occurred on that ward round. Mr Synclair contends that Mr Zafar saw him alone and without another junior doctor being present, Mr Zafar told the court that with him was the SHO named Dr Dal-Bianco who wrote the medical records. The medical record for the 27 August at 08:10 states:
"WR Zafar
Post parastomal hernia repair
PT well
Stoma (normal colour)
Home"
43. Mr Synclair told the court that he drew the colour of the stoma to the attention of Mr Zafar who he said told him that he was not to worry as it was bruising and that he would be discharged later that day. Mr Synclair was certain that Mr Zafar did not ask if he was "well" and that he did not say that he was — he being nauseous and in pain. He also disputes that Mr Zafar conducted a thorough examination of his stoma. I note that notwithstanding Mr Synclair's evidence the EWS observations scores register scored O for pain and O for nausea at 08:25 that morning although both had reported "I'" at 22:00 on the previous night.
44. Later that morning the Claimant was discharged. Mrs Joanne Synclair collected him and took him home. Having been collected Mr Synclair says that he told his wife that his temperature felt a bit high, that he was in some pain and that he was concerned about the colour of the stoma.
45. I have looked for supporting evidence for assistance in respect of the secondary case. I have heard from Mrs Synclair. In her evidence she stated that on the way home in the car her husband commented that he was concerned about the colour of the stoma because it was darker than normal. He said that he had mentioned it to the doctor that morning but that he had been reassured that it was probably just bruising and not to worry about it. She continued in her evidence by stating that she was shown the stoma that evening and she immediately noted that it did look different to normal. She described it as being darker in colour and that it didn't appear to be bloody when touched. She said that he had seen the stoma often when her husband had been changing the bag or showering and that it was normally a bright pink colour live with blood. I am satisfied that she was a truthful eye witness to the colour and condition of the stoma on 27 August post discharge.
46. Both Mr and Mrs Synclair related how over the next 48 hours or so Mr Synclair's condition deteriorated. He continued to run a temperature, she described how he opened all of the windows at night such that she herself was so cold that she had to sleep in another bedroom and how he continued to complain of pain to the point when at about 01:00 hours on 30 August he could stand it no longer and she took him back to RBH A&E where he was seen by a doctor who referred him to Mr Robert Watson who saw him at 05:30 that morning. Mr Watson's Registrar recorded the facts that the hernia repair had taken place 4 days earlier and that there had been swelling round the stoma since discharge; it was decided that he should be reviewed and that a CT scan should take place. About 14 hours later Mr Watson performed the second operation.
47. I have to consider whether Mr Synclair should have been discharged on 27 August or not. Both Counsel and both experts agree that if the evidence of Mr Synclair is rejected then the discharge from the hospital on 27 August did not amount to a breach of the Trust's duty and that there was no negligence. If however Mr Synclair's evidence as to what was said at the exchange between him and Mr Zafar on Mr Zafar's ward round is accepted then he should not have been discharged
48. Mr Synclair gave clear evidence as to the colour of his stoma at the time of Mr Zafar's ward round on 27 August and that he drew the colour of the stoma to Mr Zafar's attention. Indeed, he said that although he did not draw it to Mr Scott's attention he was concerned about the colour of the stoma on the day before. Mrs Synclair's evidence is equally clear to the extent that on the way home from the hospital after discharge Mr Synclair mentioned both the colour of his stoma and what had been said to Mr Zafar earlier that day and that she herself saw the stoma post discharge for herself and noted that it did not have its usual appearance.
In my judgment, both Mr and Mrs Synclair were truthful witnesses and, most importantly what they told the court was subsequently borne out by events. Despite the record, and it is clear that a record was kept, I find it a fact that Mr Synclair was not "well", as described, and I find that the stoma was not "normal colour" as recorded at 8:10 on 27 August. I find that those records were inaccurate in their recording. It is worthy of note that a record from the night prior to the ward round noted both pain and nausea. I find that Mr Synclair should at the very least have been monitored for a while rather than discharged on 27 August. Had he been so monitored his deteriorating condition would surely have led to a return to the operating theatre and further surgery.
49. Accordingly, I find that the Trust did breach its duty of care by discharging the Claimant when it did on the 27 August 2009. (Whatever the position may have been on 26 August, he remained in hospital). I do not accept the correctness of the record for the ward round at 08:10am on the 27 August. I am satisfied that the record was made without heed being paid to Mr Synclair's observation with regard to the colour of the stoma or the fact that pain and nausea had been recorded only 7 hours before that previous night.
50. For the sake of clarity, I do not find that the stoma was "black" as pleaded. In his evidence, Mr Synclair stated that not only was the stoma not black but that he had not at any time said that it was black. I am satisfied that it was a dark colour as described by Mr Synclair and Mrs Synclair in their evidence."
The arguments before us
"Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."
In Grace Shipping Lord Goff noted that his earlier observation was, in their Lordships' opinion "equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence." We were reminded too that in "The Business of Judging", Oxford, 2000, Lord Bingham of Cornhill observed that:-
"In many cases, letters or minutes written well before there was any breath of dispute between parties may throw a very clear light on their knowledge and intentions at a particular time."
The essential thrust of this learning is the unsurprising proposition that when assessing the evidence of witnesses about what they said, or what was said to them, or what they saw or heard, it is essential to test their veracity or reliability by reference to the objective facts proved independently of their testimony, in particular by reference to contemporary documentary evidence.
"I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate."
Dr Johnson, a GP, had made his own note of a consultation at an out of hours walk-in centre at a hospital. After a careful evaluation of all the evidence in the case, the judge found that Dr Johnson's oral account in evidence, based on his contemporaneous note, was reliable. In Welch v Waterworth [2015] EWCA Civ 11 a surgeon was unsuccessful in persuading the court that his own notes of a surgical procedure which he had performed, one a manuscript note written very shortly after the operation and another a typewritten note made later in the day at home, did not accurately record the order in which he had carried out the constituent parts of the relevant procedure.
i) Clinical records are made pursuant to a clear professional duty, serious failure in which could put at risk a practitioner's registration. Moreover, they are not compiled simply as a historical record, they fulfil an essential and ongoing purpose in informing the care and treatment of a patient. Contemporaneous records are for these reasons alone inherently likely to be accurate. No doctor would have any reason to produce a note which misrepresented clinical observations or the patient's concerns. Something more than a patient's assertions to the contrary is required to displace the sanctity, my word, not Mr Colin's, of the notes.
ii) The judge failed to give any or appropriate weight to the entirety of the clinical records which, when properly understood, supported the accuracy of the critical note concerning the 08.10 ward round.
iii) The judge failed to give any or appropriate weight to the circumstance that the Claimant had in the very matter at issue, the colour of his stoma, made previous statements inconsistent with his oral evidence at trial which called into question at the very least his reliability in that regard.
I deal with these points in turn.
"Q. You are saying that in answer to Mr Zafar's note 'Patient well' that you were in pain and in discomfort?
A. Yes.
Q. But we have a nursing note which says that you were comfortable throughout the morning?
A. I was obviously about to go home. She might have asked or what have you 'Are you okay?' and I probably might have said 'Yes, I'm not too bad' and she's put it down as 'Patient comfortable.'"
That explanation has the ring of truth about it, as did his explanation for his noted refusal "to take home medications". As the Claimant explained, it was his experience that discharge from hospital could be delayed for several hours awaiting the preparation of the package of medication with which one is to be discharged. Since his brother-in-law worked at the hospital, it was obviously preferable for him to collect the medication when it was ready rather than for the Claimant to await its uncertain arrival. This is a commonplace experience. I do not think that Mr Colin ultimately suggested that the Claimant's refusal to await the package of medication was indicative of a lack of discomfort.
Conclusion
Lord Justice Floyd:
Mr Justice Cobb: