Credibility of the Pursuer
An opinion was published recently which is an example of a case where credibility was central to the Judge's opinion (Leigh-Ann Tait or Glen v Tayside Health Board). The Pursuer gave birth to a baby boy on 29 July 2010 at Ninewells Hospital, Dundee. She was discharged home the following day. However, on 19 August 2010, she suffered a haemorrhage caused by part of the placenta not having been delivered and required surgery.
The pursuer raised an action against Tayside Health Board alleging that the midwifery staff involved in her care had been negligent in failing to identify that the placenta had not been fully delivered either at the time of delivery or during her postnatal homecare.
The court heard evidence from the Pursuer, her husband and her mother, together with six midwives involved in her care.
Following a three week evidential hearing, Lord Brailsford found in favour of the Health Board on the basis that the Pursuer had failed to establish negligence. This was primarily because he did not accept the Pursuer's evidence and he did not consider her to be a reliable or credible witness. He noted that "her evidence on a number of matters changed". There were "inconsistencies" and "claims made in evidence … not supported by entries in her notes". In addition, he noted she was "aggressive and truculent" during cross examination. He also considered the husband's account to be exaggerated.
On the other hand, Lord Brailsford noted in his opinion that "the midwives who gave evidence impressed me as caring professionals who had the interests of their patients foremost in their minds…having regard to the way in which these witnesses gave evidence, their appreciation of their professional duties and the professional standards they are requiring to meet, and to their demeanour in giving evidence, I am satisfied that the entries they made were, on the balance of probabilities, likely to have been accurate and correct."
Successful medical negligence case
This decision can be compared to the case of Annabelle Bell v Alliance Medical Limited & Others (2015) CSOH 34 in which Morton Fraser were successful in recovering damages of £700,000 for the pursuer following a two week evidential hearing.https://www.morton-fraser.com/knowledge-hub/award-failure-recognise-punctured-artery
Mrs Bell was injured following a routine MRI scan in 2009 which required liquid to be inserted into her vein through a hollow needle or cannula. However, the radiographer who carried out the procedure failed to notice she had inserted the cannula into the brachial artery in error. This case essentially came down to Mrs Bell's evidence and the radiographer's evidence as to whether there was a spurt of blood on removal of the cannula. Therefore, witness testimony was key.
The Judge ruled in favour of Mrs Bell, finding her and her husband to be credible and reliable witnesses, resulting in him accepting their version of events over the radiographer's.
Role of a solicitor
The role of a solicitor in a medical negligence case is ultimately to ensure the evidence is put before the court in a clear, concise manner. This can be challenging considering the often complicated medical history involved and extensive medical records which require to be examined. In addition to the Pursuer's own evidence, the evidence of medical expert(s) will be crucial in informing the court of the medical position. Despite this, at the end of the day, the decision of the court will often come down to whose evidence is more persuasive.