Tamar Burton’s article “Memory and Clinical Negligence Trials: Tressider v Royal Cornwall Hospitals NHS Trust” published in this month's edition of PI Brief Update Law Journal considers Cloisters' barrister Simon Dyer’s recent case and the role of lay witness recollection in clinical negligence claims.
In Tressider v Royal Cornwall Hospitals NHS Trust  EWHC 1262 (QB) the court had a single liability issue to determine: did a child present with a visible scoliosis of the spine in November 2000 and November 2001?
The orthopaedic experts agreed that had the scoliosis been visible on either consultation there was a causative breach of duty. The court was therefore considering a factual dispute between the child’s parents and an eminent orthopaedic surgeon 15 years after the event.
The Claimant’s recollection of the first consultation was limited; he was 7 years old at the time. There were no clinical notes of the consultation. A follow-up letter to the Claimant’s GP and two notes from earlier GP assessments, which suggested scoliosis, were the only contemporaneous documents. In relation to the 2001 consultation the judge found it “remarkable” that no individual present, including the adults, had any recollection of the consultation.
Lack of memory raises specific problems for practitioners in clinical negligence cases. While defendant clinicians are able to rely on what their usual practice is, claimants (or their litigation friends) must rely on their memories and any available contemporaneous notes.
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