The issue of paramedic observations and the admissibility of their opinion as to the cause of the patient’s injuries has again arise in R v Mahony  QCA 131.
In Lithgow City Council v Jackson  HCA 36 the issue was how did the plaintiff come to suffer his injuries. The High Court held that one could not infer that when the paramedics wrote ‘? Fall from 1.5 metres onto concrete’ on their case sheet that they were intending to express an opinion as to the cause of the patient’s injuries and, in any event, they were not relevant experts so any opinion would not be admissible evidence to establish the cause of injuries. One problem in that case was, given the issue was what did the paramedics intend, no-one actually asked them to give evidence on what they saw or observed or what they intended to convey by the entry on the case sheet (see the discussion on this blog at Lithgow Council v Jackson  HCA 36 (28 September 2011) (October 5, 2011)).
In R v Mahony the defendant was convicted of murder. The evidence was that the deceased died as a result of a depressed fracture to the back of her head. She had no other injuries. The defence case was that the deceased sustained the injury by falling several metres out of a tree. Three pathologists gave evidence that, in their opinion, the deceased’s injuries were inconsistent with the defendant’s version of events, that is if she had fallen out of a tree, they would have expected to see multiple injuries. Further a paramedic who treated the deceased at the scene also gave evidence that it was unusual for someone to fall from a height and only sustain the one injury to the head. There were many issues raised on appeal, this post will deal only with the issue of the paramedic evidence.
The paramedic gave this evidence:
“All right. Now, how long have you been in the Ambulance Service?—That was 2009. So I’d been in the service at that time about 7 years.
Okay. And you’d had quite a deal of experience with falling incidents?—Yes, that’s correct.
And you have come across people that have fallen a great distance?—Yes, I have.
On other occasions?—Yes, I have.
Yes. And with suffering head injuries?—Yes.
Yes?—Yes, I have.
And would it be correct to say that in your experience, that some of those people you’ve come across have fallen great distances and, yet, have no injuries?—Um—
Other than maybe the head injury?—To the best of my recollection, I’ve always noticed that there are other sort of bruisings or other factors or some sort of involvement with that —
I see?— I – with an injury of that significance, I would assume there’s something else.
You’d think there’s – should be something else?—Yeah, potentially.
Okay. Well, you expected there would have been more injuries to the limbs or something. Is that about it?—Yeah, I would.”
A nurse who treated the deceased at the hospital when she was first admitted gave similar evidence as did three examining pathologists. The pathologists were allowed to give evidence of their opinion – that if a person fell 6m from a tree you would expect to see more than a single head injury – without having to refer to relevant scientific literature or detail how their CV gave the particular expertise in the area. With respect to the pathologists, Sofronoff P said (at ):
They were eminently qualified, by their experience of actual observations that they had personally made over many years, to say that it was unlikely that [the deceased] could have fallen the distance claimed and, yet, have suffered only the single observed injury to her skull.
With respect to the evidence from the treating paramedic, His Honour said at :
For the same reasons that the similar evidence of the pathologists was admissible, so too was this evidence. The evidence about an expectation of more than a single injury was based expressly upon the witnesses’ experience. It was, in truth, evidence of fact, namely past observations and present observations coupled with the unremarkable opinion that, having regard to that past experience, the present observations were unusual.
As noted there were many grounds of appeal, the admissibility of the paramedic’s evidence was just one. All were rejected by Sofronoff P (ie President of the Court of Appeal). The other two judges Morrison and McMurdo JJA) agreed with the President, the appeal was dismissed and the conviction for murder affirmed.
The crucial issue that, in my view distinguishes this case from Lithgow City Council v Jackson is that the paramedic was actually called to give evidence. This was not reliance on a case sheet that must have limited information. Here the paramedic was able to give evidence of his years of service and his observations over time and that allow the court to assess his ‘past observations and present observations’ in a way that simply couldn’t be possible from a case sheet alone. In Lithgow City Council the comment ‘? Fall from 1.5 metres onto concrete’ given it was recorded on the patient care record, did not record what the paramedics saw to draw a conclusion (if they did draw a conclusion) as to the cause of the plaintiff’s injuries.
In my post discussing Lithgow City Council v Jackson I said (emphasis added):
For paramedics the case confirmed that their records are ‘business records’ and therefore can be used to prove the facts that they record, so that an entry that a drug was given is evidence that the drug was in fact given. But that does not allow what is otherwise inadmissible to be admissible. The paramedics were not allowed to give evidence as to the causation (if that is in fact what they intended to do) but rather could give evidence as to what they observed. Of course they don’t write every detail on their case sheet. That is neither practical in terms of the need to actually treat the patient, not record matters of evidence for later litigation nor is it why details are recorded on the case sheet. The comment ‘? Fall from 1.5 metres onto concrete’ is recorded to help inform all those involved in health care what may have happened and what injuries to look out for.
The paramedics could have given evidence of what they observed, they perhaps could even have been qualified as experts to allow them to give an opinion if they had been called…
In this case that is what happened. The treating paramedic was called to give evidence as to his experience and what he observed and it is that evidence that allowed the court to accept his ‘unremarkable opinion that, having regard to that past experience, the present observations were unusual’.
Good records can avoid the need to go to court as they are admissible as evidence to prove what they record, but in this context, patient care records cannot record everything that may be important in a trial. Inferring facts in issue, such as what was the cause of a patient’s injuries, may not be possible by reading the patient care record alone. But where paramedics are called to give evidence they can report on what they saw and observed and in relevant cases, draw an opinion based on their professional standing.