QB-2022-001544 - [2025] EWHC 2597 (KB)

The first issue I must decide is to establish what occurred in the early hours of the morning of 16 November 2016. There are substantial differences between the accounts given by Mr Hakmi and his wife, Dr Abbas, and the medical records prepared by the clinicians at the Lister Hospital, Dr MacDonald-Nethercott and Nurse Woodward, and to a lesser extent the telemedicine consultation with the on-call stroke consultant, Dr Metcalf at the Norwich and Norfolk Hospital.

Mr De Bono KC referred me to Leggatt J’s judgment in Gestminv Credit Suisse [2013] EWHC 3560 (Com) and to a subsequent case, Freeman v Pennine Acute Hospitals Trust [2021] EWHC 3378 (QB), 23, which reviewed the authorities on oral evidence. Whilst I fully accept the reservations made about the pitfalls of the preparation of and reconstruction of evidence, there is a distinction, in my view, that can properly be drawn between some commercial cases and clinical negligence cases. In the latter case the events are highly personal to the parties, in a way which would not always be true in commercial cases. The circumstances of the matters being considered may become imprinted upon the minds of the participants, nevertheless, individual recollections may become reinforced with the constant reconsideration of the matters in the years before cases come to trial.

I must give, however, due regard both to the witness evidence of Mr Hakmi and Dr Abbas, and the clinicians involved with his diagnosis and treatment at the Lister Hospital and on the telephone. Mr Hakmi and his wife have lived and relived the events of that night which have, as I have said, had a devastating effect upon their lives both professionally and personally. I must be astute as to the extent to which they have reconstructed the events with the passage of time. At times, both Mr Hakmi and his wife sought to argue his case, whilst giving answers in cross-examination. Although both of their English is fluent, I need to remember that Arabic is their first language and, indeed, the language in which they speak to each other, including on 16 November 2016. It may affect the way in which they give their evidence.

The position is complicated by the allegation that Mr Hakmi deliberately underperformed at his neuropsychological testing with Dr Ford and Dr Bach, the examination by Dr Hassan, and in the rehabilitation assessment by Dr Santullo, to advance his claim. Although Mr de Bono fell short of alleging that Mr Hakmi lied about the events that occurred on 16 November 2016, the allegation relating to the neuro psychological tests, and other tests, if found proven, would cast doubt on the credibility of his evidence, including the account of the events that occurred.

I also have the medical records which were prepared contemporaneously or near contemporaneously, but they are brief and, in some cases, significantly incomplete. The clinicians were asked in the witness box to recall events that occurred 8 ½ years ago about which they have a limited or no recollection. Dr Macdonald-Nethercott, the Emergency Medicine Registrar, and Nurse Woodward, the Specialist Stroke Nurse, have a very limited recollection of the events on 16 November 2016. Dr Metcalf says he has a very clear recollection of the telemedicine consultation, possibly because of the IT equipment failure which took place. They all rely upon the notes that they made or, in the case of Dr Massyn, were made on his behalf by Dr Lane, who did not give evidence.

There are two uncontroversial matters about which there is certainty. Mr Hakmi sustained two strokes in short succession. The first on 26 September 2016 and the second on 16 November 2016.

The quality of the note taking on 26 September 2016 is of a high standard. Mr Hakmi sustained his first stroke at about 0630 on 20 September 2016, which was diagnosed as an ischaemic event/TIA, later as a lacunar stroke, following an MRI scan. His NIHSS score on the Stroke Proforma (A) on that occasion was 3, and the power in his upper and lower limbs was recorded as 5/5. Dr Pusalkar, stroke consultant, Lister Hospital, advised against thrombolysis because of the risk of bleeding, however, Mr Hakmi asked for and was provided with it. He made a good recovery and returned to work on 15 November 2016. The symptoms recorded in the records for the first stroke state that he had suffered from problems in coordination, a weak right arm, facial droop, problems in speech and whilst climbing stairs he found his right leg was heavy.

Turning to the events of 16 November 2016, Mr Hakmi’s evidence is that whilst working late on 15 November 2016 at about midnight he suffered from an episode of light headedness and a very slight weakness in his right hand which lasted a few minutes. He said in cross-examination that when he went to bed at 1230, he was feeling normal otherwise he would have gone at that stage to hospital. It was put to him that he had given three accounts of the incident lasting 5, 10 or 15 minutes. He said that he had not counted the time, however, he considered that the symptoms had completely resolved. He said he did not feel weakness in his face. He did not feel that he was having a stroke. He had checked his own blood pressure.

Mr Hakmi says that he was woken at 0320 by his 4-year-old daughter whom he settled. In his witness statement he states: “After settling Jenna in bed, which would be around 03:40 hrs, I started to feel lightheaded which came and went. I felt numbness in my right hand up to my elbow. My right shoulder and right hip felt heavy. My speech was alright but the right side of my face felt slightly altered. I woke my wife up and told her that I thought I was having a stroke.” He felt that it was more severe than his first stroke. They dressed and drove to the hospital leaving their three children alone at home. Mr Hakmi telephoned the hospital to warn them that he was coming, speaking to the stroke nurse, explaining his symptoms. The journey by car took 7 minutes.

As Mr de Bono has submitted there are varying accounts of the history given in the Lister Hospital records. There are different times as to the first episode that night, which the expert stroke physicians consider was probably a TIA, as to when it occurred and how long it lasted. Whether it was 2345 or around midnight. Whether it was 5, 10 or 15 minutes. Whether it resolved completely before he went to sleep or not.

As to what happened when Mr Hakmi arrived at hospital the position is significantly less clear. Mr Hakmi says in his witness statement that he told Dr MacDonald-Nethercott, whose name he did not know: At around 03:20 hrs, I was woken up by my crying four-year-old daughter, I went to her and took her to the toilet. I was feeling 100% normal. I went downstairs to bring her a glass of water and put her to sleep. At 03:40 hrs, I started to feel proximal weakness in my right shoulder and right hip which felt unusually dense and I had to make a lot of effort to move them, that I had numbness in my right hand up to the elbow, that I felt my speech was slightly affected as I had to make an effort to speak, and I had a disturbed sensation in my right side and light headedness which was coming and going. My wife added that she could see the right side of my face had drooped. This casualty doctor spent a few minutes with me doing a superficial examination whilst I remained on a trolley, then he said to me that the examination was completely normal.”

Dr Abbas supports Mr Hakmi’s account and emphasis that he was complaining of weakness in his right shoulder and hip. She says that Dr MacDonald-Nethercott did not look at her when he said to Nurse Woodward that she should examine her husband again. She does not have a clear recollection of the nurse’s examination other than it occurred after the CT scan and after the discussion with Dr Metcalf.

The evidence from Dr Macdonald-Nethercott and Nurse Woodward does not take the matter much further. I have summarised what I consider to be the relevant parts below.

The curious feature of this case is that the history given by Mr Hakmi and his wife of two separate incidents, at midnight and about 0340, is not recorded in Stroke Proforma (A) at all. Dr MacDonald-Nethercott merely recorded “R arm subjective weakness + reduced sensation, Onset 2345. Presented A & E 0415. O/E Power 5/5 throughout. Speech facial muscles normal.” There is no reference to events at about 0340. Dr MacDonald-Nethercott said in evidence that in his rapid assessment he would have concentrated on the onset of the symptoms. The Stroke Proforma (A) records zeros against all the tests required. The clinical note is only partially completed, omitting references to lower limbs and visual fields. Under previous diagnoses and problems, it states: “Stroke thrombolysed Sept 2016. Supported return to work yesterday.”

The deficiencies in the Stroke Proforma (A) were put to Dr MacDonald-Nethercott in cross-examination. He agreed that it was a blank document until after Mr Hakmi returned from the CT scan and had spoken to Dr Metcalf. Dr MacDonald-Nethercott agreed that Mr Hakmi would have said more than he had weakness in his right arm at 2345. He accepted that if Mr Hakmi had said he had weakness in his right leg then the adequacy of the note fell below the required standard. He is now unable to comment beyond the matters he wrote in the records.

He said that he was expected to carry out a basic assessment with a more rigorous assessment to be carried out by the stroke team. He says that there was time pressure not to document more because of the urgency of carrying out treatment with thrombolysis within 4 ½ hours of the onset of the stroke. I accept this explanation for the brevity of the history taking although I consider that it fell below the standard required for documenting the history. It may also explain why the later incident at 0340 is not referred to in either his or Nurse Woodward’s note. It is referred to briefly in Dr Metcalf’s note as 0300.

Dr MacDonald-Nethercott said that he delegated the second assessment to the stroke nurse before a decision on thrombolysis was made. He has no recollection of his conversation with Dr Metcalf. He believes he was called back to speak to him. He said he did not believe that he was present when Mr Hakmi and his wife were speaking to Dr Metcalf.

Nurse Woodward was a specialist stroke nurse employed at the hospital. She spoke on the telephone to Mr Hakmi when he rang from the car to say that he believed that he was suffering from a stroke. She says that when she arrived at the Emergency Department, Dr MacDonald-Nethercott was already with Mr Hakmi.

Nurse Woodward’s notes, timed as starting at 0410, do not take the matter much further. She cannot remember whether Dr. MacDonald-Nethercott was beside the trolley bed whilst taking the history or how long they were together. She cannot remember what Dr MacDonald-Nethercott was doing when she arrived. She presumes that they took separate histories. She accepted her history was brief and assumed that it had been taken by Dr MacDonald-Nethercott. She is unclear as to who wrote the scoring other than there were two assessments one on arrival by Dr MacDonald-Nethercott, and then a further one by her at 0520. She does recall that Dr. Abbas did not accept the result of the examination that there was no evidence of a stroke. She remembers Dr Abbas asking for another examination.

Nurse Woodward cannot recollect if she was present when Dr MacDonald-Nethercott spoke to Dr Metcalf. She does not think so. She did say that the consultation with Dr Metcalf, by extrapolation, cannot have been more than 17 minutes. The CT scan was at 0449. The consultation had begun at 0430. Allowing two minutes to get to the CT scanner, the consultation cannot have been more than 17 minutes. She says that she took him to the CT scan in a wheelchair. She accepts that Mr Hakmi would have needed to be on a trolley in a cubicle for an assessment. She does not accept that that the second assessment at 0520 took place in a wheelchair. She said that she has never done an assessment in a wheelchair.

Dr Metcalf accepts that he was unable to access the VC software or CT imaging for the remote telemedicine consultation with Mr Hakmi. He says that he now checks the equipment before he comes on duty. He does not recollect whether he told Mr Hakmi the system was not working. The consultation took place, therefore, on the telephone. He could not see Mr Hakmi or examine him. Contrary to the provisions of the telemedicine contract in place at the time, which provides for the presence and participation of a stroke nurse, he does not recollect a conversation with the stroke nurse only with Dr MacDonald-Nethercott. The thought crossed his mind to telephone another telemedicine stroke consultant, Dr Chakrabarti. He did not do so because he was convinced that Mr Hakmi had not had a stroke and was not, to use his word, thrombolysable. He considered that there was sufficient detail from the NIHSS score to make an assessment. He said that it was not the detailed neurological assessment Mr Hakmi was expecting.

Initially Dr Metcalf maintained that there was a 50-minute consultation with Mr Hakmi but then later accepted that could not have been correct. He assumed that the conversation took place before the CT scan. He cannot explain why he recorded that the consultation ended at 0520. He does not recollect Mr Hakmi and his wife being unhappy. He explained that the note available to the court was a composite note made from a handwritten note, which he had destroyed, of his conversations with Dr MacDonald-Nethercott and Mr Hakmi. His opinion was that Mr Hakmi had not suffered a stroke. He accepted that he had told Mr Hakmi and his wife on the telephone, that he may have had multiple TIAs and he referred to other causes for his symptoms being epilepsy, a brain tumour and migraines, which he now accepts were unlikely.

He says that he has a very clear memory of the discussion and believes that the correct decision not to offer thrombolysis was made. He did not consider that Mr Hakmi had had a stroke and, therefore, there was no need to weigh the risks and benefits of thrombolysis. He agrees that it was a relative, as opposed to an absolute, contra indication that Mr Hakmi had had a stroke within the previous 3 months, which would increase the risk of bleeding. A previous stroke within 3 months in the Norfolk and Norwich Hospital protocol is a relative contradiction. He would have remained on-call until 0800 that morning.

Dr Massyn, stroke consultant, Lister Hospital, has no recollection of the ward round or history given to him about Mr Hakmi when he came on duty at about 0800 on the morning of 16 November 2016. He believes that he formed the impression that the stroke had taken place more than 4 ½ hours before. He formed the view that Mr Hakmi was outside the period for thrombolysis. In any event, the protocol at the Lister Hospital at the time considered it was an absolute contra-indication to offer thrombolysis where there had been a stroke within the previous three months.

At 1041 on 16 November 2016 an MRI scan was performed and confirmed that Mr Hakmi had suffered a second stroke.