The quality of evidence of ‘normal practice’ in information disclosure cases post Montgomery

Introduction

It is the duty of the court in any case to assess the evidence of witnesses and make an assessment on whether that evidence is reliable and/or credible and what weight should be attached to that evidence.
Generally where the question is whether a person did a particular thing at a particular time, it is irrelevant to show that he/she did a similar thing on some other occasion [1]. Lord President Dunedin in Oswald v Fairs [2] said that if the question is whether A said a certain thing to B it is irrelevant to show that A said something of the same sort on another occasion to C.
In Inglis v National Bank of Scotland [3] where a claimant sought to recovery money alleged to have been paid as a result of misrepresentations, he was not allowed to prove that similar representations had been made by the same person to others.
There are however situations in law where evidence of similar acts have been held to be relevant but it has been suggested that that evidence of similar acts are unlikely to be of assistance unless the facts are virtually identical [4]. Similar fact evidence is allowed in criminal cases but its use is regulated.
In the clinical negligence action the question is what is the probative force of evidence of “normal practice” from a doctor in the absence of any other supportive evidence such as a clinical note.
A doctor may be faced with allegations of negligence for the first time many years after an event has occurred. Where the doctor has made a clear concise accurate and contemporaneous record courts will generally accord great weight to what is recorded as being an accurate account of what occurred.
This is one reason why doctors are encourage to make clear notes within a patient’s records but clearly the rendering of good patient care also requires that clinical note taking is performed well [5]. The MPS provides:

“If continuity of care for patients is to be assured, it is vital to keep good medical records, whether they are handwritten or electronic. Health professionals and others are able to use adequate medical records to reconstruct the essential parts of each patient contact, without the need to refer to memory. When medical notes are sufficiently comprehensive, it is easier for health professionals to carry on where a colleague left off.”

What then of the situation where a doctor fails to make a note or the note is brief? When this is encountered the practice in court actions is to lead evidence of what the doctor “normally” did in that situation. This evidence is usually presented as if this is factual evidence of what happened at the time, when in fact it is simply evidence of what that doctor’s normal practice was at the time.
What weight can be given to that evidence by the court when faced with direct evidence from a claimant on what actually occurred and in the absence of a contemporaneous note?
This issue has been considered recently by the Australian courts in the case of Kempster v Healthscope Operations Pty Ltd [6] and it is useful to review this decision in this case and some of the other Australian cases when considering how this issue may be approached in our courts.

The Facts

In Kempster the plaintiff alleged that a nurse negligently administered a heparin injection thereby causing nerve damage to the thigh. The plaintiff had undergone an abdominoplasty [7] after she had lost significant weight and had been prescribed heparin post-surgery to be given by injection.
 In the action the plaintiff asserted:

1. that the nurse failed to pull up the skin from the muscle before administering the injection which would allow the injection to be administered into the subcutaneous fat,

2. injected the needle into the deeper subcutaneous region of the lateral femoral cutaneous nerve damaging the nerve.

Of assistance to the plaintiff was the fact that a doctor attending her the following day gave evidence that he recalled her complaining about the way the injection was given and there was a lump in the area of the injection and there was a nursing note referring to a haematoma in the area. She also wrote a letter of complaint proximate to the events which supported her version.
Causation was also in dispute. There was medical evidence on both sides which challenged how the nerve damage had occurred. The defendants’ expert was of the view that the probable cause of the nerve damage was either the surgery of the wearing of the compression garment following surgery

The decision

The court was satisfied that Mr Nunes did administer the injection in a manner which fell below the standard of care to be expected of a nurse in his position. It was concluded:

“Whether due to the pressure of work, or just momentary carelessness, he inserted the needle at an angle which allowed the point to penetrate the deeper tissues overlying the plaintiff’s left thigh muscle. I find that he probably did not attempt to “pinch” the skin on the plaintiff’s thigh, or that if he did make that attempt, he did not do so effectively. “

Comment

This case is interesting in considering how a court should deal with evidence where a witness cannot recall anything of the event and the totality of the evidence is based on what the witness would normally do.
In the information disclosure (consent) case, a claimant may assert that there was no discussion on the options for treatment, nor of risks and benefits of treatment. There is often a dispute on what risks were explained. It is not uncommon in such cases to see brief notes to the effect “all risks explained”.
In this situation, the only evidence the doctor is able to give is what his/her ‘normal practice’ would have been at the time.  The courts then require to adjudicate on the weight to be given evidentially to “normal practice’ when compared to direct evidence from a claimant, often supported by family members of what they say occurred.
In Kemster the court considered this issue and assessed the evidential weight to be attached to the “invariable practice” of Mr Nunes.
In Kemster it was said:

‘However, Mr Nunes’ complete lack of recollection of the specific injection on the evening of 12 August 2014 means he can only assert what he believes he would have done by reference to his usual, or ‘invariable’, practice. I should note that I have some difficulty with the notion of an invariable practice. Ordinary human experience suggests that there can always be momentary lapses or careless errors in the performance of mundane or routine tasks.”

She became pregnant, and gave birth to a boy who suffered from multiple disabilities. She brought a claim for damages associated with her pregnancy and the birth.
Professor Lam said that while he could not recall the advice provided almost 10 years earlier, based on his usual practice he would had warned her about the risk of pregnancy and the ongoing need for her to use contraception.
In 1992 he had published 2 articles setting out the risk of pregnancy following endometrial ablation and the need for contraception. He also said that it was his usual practice to provide written information to reinforce the verbal information he provided during a consultation. Since about 1992 it was also part of his usual practice to provide the written information by way of a brochure. While he could not recall giving the plaintiff written information he believed that he had done so. His notes also suggested that issues of contraception would probably have been discussed but the notes were not clear.

The Court did however note the difficulties arising from reliance upon the assertion of usual practice in medical cases. In particular, it was noted that for the claimant there were difficulties in undertaking inquiries into and testing the truth of this assertion. It was held that the appropriate approach was to consider the evidence in the context of the objective material and logic of events, the inherent probabilities and any admissions made against interest.

“There are a number of difficulties with reliance upon usual practice in cases involving medical or other professional advice, some of which are prevalent in this case.”

“The difficulty with such assertions is that they are hard to scrutinise. It is difficult to envisage the means by which a plaintiff in Ms Neville’s position could inquire into, much less test, Associate Professor Lam’s assertion that in his treatment of patients over the years his usual practice of warning them of the risk of pregnancy was “invariably” followed, or whether it was only “usually” followed, or perhaps less frequently adopted.”

The court found that reliance on assertions of usual practice will carry greater weight where they are accompanied by something else that supports the assertions and consistent with the remaining factual and logical background. The context derived from the doctors notes and the fact that his assertions regarding his usual practice were consistent with his previously published articles was important in this particular case.

“I have Associate Professor Lam’s assertion that his invariable procedure was to warn of the residual risk of pregnancy and of the need to use a safe and effective means of contraception after an endometrial ablation. While there are reasons to be cautious in acting on such evidence, in this case his assertion is bolstered by his own writings. The likelihood that he failed to comply with his own advice on two occasions seems to me to be relatively low.”

There was reference to Wallace v Kam [11]. This is an information disclosure case but when considering causation questions in Australian cases it must be kept in mind that causation is not simply governed by common law and the Civil Liability Act 2002 (NSW) applied to causation questions in Wallace v Kam in combination with common-law principles.

In Neville, the court was referred to the judgment of the Supreme Court of New South Wales Court of Appeal in Elayoubi v Zipser [12]. This was a claim on behalf of Mrs Kolled’s child. Mrs Kolled suffered a rupture of her uterus when she had a vaginal birth following caesarean section and her child suffers from cerebral palsy.
The Court of Appeal had held that there was support for the trial judge’s conclusion that Mrs Kolled was not warned about the nature of the previous caesarean section and its ramifications. The doctor’s evidence about her usual practice was a reconstruction of what she would have done on a particular occasion of which she had no memory based on her professional expertise and understanding of the significance of the particular procedure which had been undertaken. In contrast Mrs Kolled gave express evidence about what was not said and this had been assessed as genuine.
It was said:

“Evidence of usual practice may be of assistance in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice.” [13]

In this case it held that the court was not concerned with a mechanical step or routine task but with a quite unusual procedure in professional practice. Nor was the task itself in any sense mechanical as it involved conveying important medical information to a patient in a hospital ward. It was recognised that it was difficult for any plaintiff to effectively test the assertion of normal practice.
In Sandra George v Dr Nigel Biggs and St Vincent’s Hospital Sydney Ltd [14] the court again considered the question of the evidential weight of usual practice evidence subject to the approach in Elayoubi v Zipser.

During the course of evidence objection was taken to certain doctors giving evidence not on the basis of their specific recollections of what actually occurred but what they described as their usual professional practice in such circumstances.  The evidence was admitted but it was noted that it still required evaluation as to its relative weight and probative value.
It was also noted that evidence of usual professional practice should be evaluated with caution and there should not be an uncritical acceptance of it by the court.
It was said when considering the doctor’s evidence:

“That example demonstrates how a skilled professional, trained to pursue a routine pattern in the clinical setting can at times innocently depart from a standard routine, yet maintain the belief that the pathways of the standard routine had been followed.” [15]

“the consultation would have involved the possibility or the likelihood of a departure from usual practice because it did not involve mechanical or routine tasks” [16]

“The omission in Professor Fagan’s notes of any mention of the major complication of facial nerve injury highlights the need for caution to be exercised in drawing positive inferences concerning absent information in such notes.” [17]

“This is especially so where the positive inference sought to be drawn by the defendants is a finding that the subject of facial nerve paralysis was discussed with the plaintiff. That submission is founded upon an absence of relevant recollections on the part of Professor Fagan, and an assumption that he had adhered to usual professional practice.” [18]

In relation to the consultation it was said:

“[it] was far removed from a standard or routine mechanical task which would reasonably permit the reliance on a description of usual professional practice to resolve the controversy on this issue.”

This case is also of interest on the issue of what steps are required to impart information where a person has limited understanding of the English language. The Court of Appeal held that this misunderstanding was not due to any breach of duty on the part of the doctors. The Court rejected the argument that practitioners must take additional steps to ensure the patient understands, or that the patient understands an interpreter.
In Australia, a distinction is made where the practice involved conveying important medical information to a patient in a hospital ward. It was recognised that the process of imparting information to a patient is an interactive one such that, depending on a patient’s responses, the advice proferred by the medical professional may take a number of different courses. In this situation, the issue of what is discussed is dependent on the interaction that takes place.
It is therefore arguable that in particular in the information disclosure case great care must be taken to accept what is said to be “normal practice” in relation to disclosure of risks as determinative of what occurred and particularly so where the case has some peculiarity and there is no support within the clinical notes. Where there is support within the notes or other supportive information as in Neville v Lam this can be used to support the factual evidence.

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[1] Walker and Walker, The Law of Evidence in Scotland, 4^th Edition, para 7.2
[2] 1911 SC 257 at 265
[3] 1909 SC 1038; Advertising Concessions (Parent) Co v Paterson, Sons & Co (1908) 16 SLT (OH)
[4] Strathmore Group Ltd v Credit Lyonnais 1994 SLT 1023 at 1031.
[5] GMC Guidance, Good Medical Practice current guidance in force 22 April 2013 www.gmc-uk.org/guidance. Medical Ethics Today, The BMA’s handbook of ethics and law; www.themdu.com/guidance-and-advice/guides/consultant-pack/good-record-keeping; www.medicalprotection.org/uk/articles/the-legal-importance-of-good-medical-records.
[6] [2019] ACTSC 248
[7] Tummy tuck
[8] [2014] NSWSC 607
[9] Per Beech-Jones J at [103]
[10] destruction of the lining of the uterus
[11] [2013] HCA 19
[12] [2008] NSWCA 335
[13] Para 86
[14] [2015] NSWDC 11
[15] Para 21
[16] Para 22 with reference to Elayoubi v Zipser at [86]
[17] Para 25
[18] Para 26