Challenging Credibility Based on Inconsistent Records

It is often the case that medical records or other documents contain versions of events inconsistent with the claimant’s pleaded case. In these situations, Insurers will have to decide whether to proceed to trial in the hope of winning by undermining the claimant’s credibility. 

 

The starting point is the Court of Appeal decision of Denton Hall Legal Services & Ors –v- Kathryn Hilary Fifield (2006). Mrs Fifield claimed damages relating to an upper-limb disorder which she allegedly suffered whilst working as a secretary for Denton Hall. At first instance, she was awarded £157,341 on the basis that her injury was attributable to Denton Hall’s breach of duty. Denton Hall appealed on the ground that the judge ought not to have accepted Mrs Fifield’s case as to the date of the onset of her symptoms because she had given inconsistent histories to various medical practitioners. 

 

The appeal was dismissed but Buxton LJ gave some useful guidance as to how to deal with these cases. Firstly yhe doctor’s record of a statement made to him is hearsay evidence of a previous inconsistent statement allegedly made by the claimant. The record of the previous inconsistent statement can be adduced in evidence if it is put to the claimant and he admits to having made it or, if he does not admit to the statement, it can be proved under the Criminal Procedure Act 1865 by putting to the claimant the circumstances in which the statement was made and asking him, again, whether he made it. If the court concludes that an inconsistent statement has been made, this goes only to the credibility of the claimant. 

 

Buxton LJ advised that a party seeking to contradict a factually pleaded case on the basis of medical records should indicate its intention by notifying the opposing party or by amending its pleadings. The opposing party must then indicate the extent to which it objects to the accuracy of the records. 

 

We recommend that defendant Insurers who seek to rely on a claimant’s inconsistent statement take steps to review the claimant’s medical records and note any inconsistent statements made. They should introduce the statements to the claimant, if necessary giving him sufficient information about the circumstances in which the statement is alleged to have been made to allow him to identify the particular occasion. If the claimant admits to having made the statements, they will be admitted as evidence. If not, call the person who prepared the record to give evidence or serve a CEA notice on the opposition who may then apply to the court for that person to be called to give evidence. In the alternative, set out the intention to rely upon the statement in the defence or counter-schedule, advising of your intention not to call the author of the record to give evidence.

 

Is it all worth it? Our own experience suggests that it can be. In one of our cases the trial judge, finding that the claimant’s account of not having been issued with protective equipment was inconsistent with an entry in his GP records, commented that medical professionals are highly trained individuals whose records should not lightly be regarded as incorrect. However, you must pick your fights wisely. Is the entry something which can easily lend itself to confusion and why was it made? For instance, has the doctor recorded “not wearing goggles” in a case involving eye injury, which could be regarded as a very deliberate entry, as opposed to a more general description of accident circumstances where the practitioner may be less concerned with detail, and what supporting evidence is there?

 

In the recent Court of Appeal case of Bell –v- London Borough of Havering (2010) Ms Bell claimed damages for personal injury arising as a result of a fall which occurred when she allegedly trod on the side of a planter. The judge at first instance found in her favour. The council appealed on the basis that the judge had not properly taken into account numerous inconsistencies in the claimant’s evidence.   

 

A number of differing versions of events were contained within the claimant’s medical records. The triage nurse noted “patient fell from steps last night”. Another medical professional recorded “fell down stairs last night”. The senior house officer stated “was drunk and slipped over the backdoor step last night” and the physiotherapist noted “trip over dog and fell down steps”. 

 

Notwithstanding these apparently clear and contradictory records, the Court of Appeal was not prepared to reverse the judge’s finding that the claimant may well have been confused when relaying the accident circumstances to the medical practitioners and that she was essentially a credible witness. The version of events which she gave at trial was supported by her friend, with whom she was walking at the time of the accident, and her son, who attended the scene shortly afterwards. 

 

There may well be good grounds for fighting cases on the basis of inconsistent statements in medical or other records. A word of warning, however: If proceeding to trial, the court will expect defendants to adhere to a strict procedure if the claimant’s evidence is to be challenged and, as ever, the outcome depends much on the claimant’s credibility and that of any supporting witnesses.