A sure sign of ageing (call it experience, if you will) is the realisation that ‘we've been here before’. In 1997, I published an article in this journal concerning practitioners' recall of events when they were involved in perinatal litigation (Symon, 1997). In that article, I reported several cases where midwives, on being made aware that a legal claim had been made, were unable to remember a specific event (usually a birth) and had constructed their report based entirely on the case notes. For example, in one case when a claim was made about a stillbirth 18 months after the relevant date, three midwives wrote:
1) ‘I confirm that it is my handwriting in the… notes… I have no recollection of the incident.’
2) ‘On reading the notes… I have no recollection of the case.’
3) ‘Following refreshing my memory about this lady by reading her case notes I find that I remain unable to recollect this situation.’
The point was that, after just 18 months, it can be very difficult to recall a particular birth—even, apparently, a stillbirth. In another case, a midwife stated:
‘I have no recollection of this lady. I have made my statement entirely from my entries in the midwifery notes.’
While this much is understandable, it does underscore the importance of documentation being both accurate and thorough—something that goes without saying. Except that it doesn't. I raise this rather dated reference now only to show how some things—like the importance of good documentation—just don't change. The case I will describe here does have a novel element, however.
In the recent court case of CD v Lanarkshire Acute Hospitals NHS Trust [2015] a midwife was faced with having to recall a particular birth from more than 16 years earlier. It was apparent soon after the birth that the baby had suffered a severe brachial plexus injury, and the senior midwife at the birth made her written statement just 2 months later. Even at that short distance of time, she struggled to remember all the details of the day in question, and inevitably had to rely on what she and others had written in the notes at the time.
As is frequently the case when a claim is raised, there was then a long delay. After a gap of 12 years the midwife found herself discussing the case with the health board's lawyer, and it was another 4 years before the court hearing.
In the CD case, the clinical records and the senior midwife's reliance on them came under some scrutiny. Asked by the pursuer's lawyer whether she had witnessed the delivery of the baby's head, her response was:
‘I said it in my statement… if it is written in my statement I did see the head delivered.’
The judge noted that the midwife continually used phrases such as ‘would have been’ or ‘would have happened’, and had to be reminded repeatedly that she should only tell the court what she actually remembered.
Problems of memory recall in this situation are compounded by the fact that the court setting is unfamiliar to most people. Adversarial legal systems pitch two sides against each other, and lawyers can try to intimidate the other side's witnesses. As Holt (2006) notes, albeit in an American context, there is constructive cross-examination and destructive cross-examination. He advises lawyers in the latter case that ‘your goal is to establish your immediate control over the witness’.
The rules of communication are also different to that used in everyday life. Cross-examination is not a conversation in which witnesses get to ask their own questions back. A lawyer representing one of the parties will ask a question, but the witness' reply must be directed to the judge. This triangular communication can be surprisingly unsettling, a fact not helped by confusing terminology. As long ago as 1726, Jonathan Swift noted in Gulliver's Travels that lawyers have ‘a peculiar cant and jargon of their own, that no other mortal can understand’. While the legal system today tries to be less obscure and more helpful to those appearing in court, having to give evidence and being cross-examined can be intimidating. Dimond's (2013: 158) advice on giving evidence in court is: ‘Keep calm; give answers clearly and without exaggeration; tell the truth.’ This much may seem obvious, but the fact that it has to be spelt out illustrates the potential pitfalls.
‘If you did something, record it appropriately; if you didn't do it, it's both unethical and implausible later on to claim that you did’
Where the CD case is unusual is that the midwife appears to have changed her mind about her recollection of the birth, stating at the end of her evidence:
‘I have a clear recollection of the delivery… I can remember distinctly the delivery.’
The judge noted this change:
‘While I fully understand a witness being unable to remember details of an incident of many years before, I have difficulty understanding how a witness' evidence can improve as dramatically as in the case of this witness over the period of two days.’ (per Rae LJ @ 51)
The cause of this change in mind seems to have been the midwife's desire to distance herself from the implications of her clinical records, and specifically the fact that she had documented ‘moderate shoulder dystocia’. Pressed under cross-examination, she seems to have realised that this term left her open to criticism, as she had apparently not followed the relevant protocol for dealing with such an emergency. In evidence she asserted that if there had been shoulder dystocia this had only been ‘to a mild degree’. Towards the end of cross-examination she asserted that ‘Looking at it today it was a snug fit’. She also changed her mind over the phrase ‘manual rotation’, which she had recorded in the notes. When questioned about this she stated that, in fact, this was not accurate.
Sadly for this midwife, the impression given was either that she was unsure of what had happened, or that she was trying to cover it up. Her claim that she had followed some of the steps outlined in the HELPERR mnemonic (Table 1) was not supported by any other source of evidence. The lesson—obvious when I reported on this topic nearly 20 years ago (and, even then, it was not new)—is that good documentation is of paramount importance. This point has been made many times over the years, and is stressed by the Nursing and Midwifery Council (NMC, 2015) in its revised Code. Detailed records may be the only evidence on which practitioners can rely when there is a long delay between event and subsequent inquiry.
Table 1. HELPERR mnemonic
| H: call for help |
| E: evaluate for episiotomy |
| L: legs in McRoberts' manoeuvre |
| P: pressure (suprapubic) |
| E: enter |
| R: remove posterior arm |
| R: roll over onto all fours |
Some midwives who were not practising 20 years ago may feel that ‘that was then; this is now’. While standards in documentation have certainly improved overall, there is still evidence of poor practice—see, for example, the recent Kirkup report (Kirkup, 2015). The CD case shows that the fallout from mistakes made many years ago is being felt today. By the same token, today's errors and poor documentation could come back to haunt practitioners many years down the line.
The other lesson is that courts are unlikely to find a dramatic change of mind plausible. If you did something, record it appropriately; if you didn't do it, it's both unethical and implausible later on to claim that you did.