Memory is a fickle concept. The ‘Mandela Effect’ refers to the distorted recollection that an individual perceives as true, taking its name from the incorrect memory people had of Nelson Mandela dying in the 1980s. Parties in litigation can undergo a similar psychological phenomenon, the ‘Litigation Effect’, whereby their recollection of events is impacted by the outcome and emotions towards the incident as a whole. This was seen recently in the motor accident case of Palmer v Timms (2024) in which the judge noted that “the capacity for people to persuade themselves that they remember things differently from how they actually were is again a matter of common experience”. Most commonly this can be defined as people remembering “what should have happened rather than what did happen”.
This may occur where a claimant who feels aggrieved by the outcome of a healthcare procedure remembers more vividly their negative recollections, glossing over aspects that do not fit with their current feelings towards the procedure. This is not to say that they are purposefully lying or even bending the truth, but that the way we remember events becomes shaped by our current viewpoint – in this case the alleged negligence and litigation. In particular this can be true about the recollection of risks. There is a stark difference between being told of the theoretical pain of a serious but rare risk before a procedure, versus the very real pain felt as a result of that rare risk becoming a reality afterwards. Whilst people may be willing to run a risk when it is theoretical, often believing it won’t happen to them, when faced with the reality of pain or limitations, they may perceive that there was no way they would have actually decided to run that risk.
For example, in SD v AR and JT (2024) witness credibility played an important role in finding in the defendant’s favour. Whilst the medical practitioner had not noted the discussion of a certain risk in the medical records, as he should have per Montgomery v Lanarkshire Health Board, he attested that in keeping with his usual practice he would have discussed it. Of importance to the decision were issues in the claimant’s recollection of the incident. She could not recall some risks that were noted in the medical records yet remembered some that were not. It was particularly notable that the claimant could not recall references to the specific risk during a second operation where this was discussed in the records. These issues may each seem small but they highlight how our memory can be fuzzy and unclear. Finally, the judge noted that the way the claimant gave evidence suggested she was recalling what would have happened for her case to succeed rather than what actually occurred. These factors lead to the judge finding that the risk had been discussed.
Doctors and practitioners are not immune from this thinking either. In particular they may face trouble recalling what was once just another day at work. An example of the impact of witness evidence can be seen in HTR v Nottingham University NHS Trust in which the issue was whether a particular doctor had performed an ultrasound where reduced foetal movement was discussed. The judge found in favour of the mother’s evidence despite the medical records. This was on the basis that the defendant doctor claimed to never perform ultrasounds when there was evidence from other staff in the department that they did. Additionally, the claimant was a credible witness and had prepared their witness statement without having seen the medical records and was thus making a genuine recollection of the key events.
Perhaps the best way to mitigate the risks of recollections comes in the form of the medical record. In Goodman v Faber Prest Steel (2013) the Court of Appeal noted how “memory often plays tricks and even a confident witness who honestly believes in the accuracy of his recollection may be mistaken”, highlighting the value of evidence in support of a witness’ position. For medical practitioners the key opportunity for them to evidence this comes in the records.
There are many reasons why the medical record is a particularly strong opportunity to do this, including that they are:
The judge in SD v AR and JT noted that it was a potentially determinative factor that the risk was not within the medical records, and it was from the presumption that the record was the entirety of the discussion that the case then proceeded on. Therefore, a strong record which covers all the material elements discussed is important as the baseline of proceedings. It is potentially determinative in both directions as, if it is in the record, the claimant needs to disprove this for the case to proceed and, if not, the practitioner needs to prove it did occur for the case to be successfully resolved.
Firstly, it is best to have factual evidence to rely on. Whilst the primary role of medical records is to facilitate the effective treatment of patients, they also provide a useful form of evidence if a case comes to trial. The records should explain the totality of the situation if filled out correctly, and can highlight that, whilst you do not recall discussing the specific risks three years ago on a Thursday in March, the record shows that you did discuss these risks and explained the benefits.
Secondly, be honest and open. In several of the cases noted in this article the judge highlighted individuals who gave hopeful evidence of what they think should have happened. Judges notice this and it impacts the credibility of the situation. Instead try your best to recall what you can but be open about where you cannot remember an issue.
Oliver Evans - Complex Paralegal – Healthcare and Sport
Email: oevans@keoghs.co.uk
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