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Discrepancy in recollection of medical records: who or what will a court believe?

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In clinical negligence cases, your specialist solicitor will rely mainly on documentary evidence such as medical records. These are very often the most crucial piece evidence in deciding whether there has been any negligence.

The court generally gives more weight to what a medical professional has recorded in his/her notes or records produced at the time of the event or soon after than they do to the evidence provided by the claimant. Witness statements are important but form only part of the factual evidence which is considered at trial. Kiran Deo, Senior Associate, explains:

‘In clinical negligence claims, other factual evidence is important to the claim. This could be letters of complaint made shortly after the events, photographs, text or Whatsapp messages from the claimant describing the events, diaries entries and social media postings. These examples may form part of the court’s analysis if asked to make findings of fact.’ 

Medical records are obviously not infallible and are often incomplete and the more contemporaneous evidence there is supporting the claimant’s version of events, the more likely the court will determine finding of fact in favour of the claimant. Recent case law has highlighted the fact that the court will weigh and test medical records complied at the time of the event, just as other evidence is. 

Recent Case Law

This issue was dealt with at trial in a recent case HTR v Nottingham University Hospitals NHS Trust [2021] dealing with breach of duty only. 

The claimant (who was the child but was represented by her mother and litigation friend) was born by emergency caesarean section on 10 October 2004. She suffered permanent brain damage resulting in cerebral palsy. Four days prior to the birth, her mother attended the hospital due to a concern that the baby was in a breech position. The apparently contradictory claims were as follows: 

  • The claimant maintained  that she was seen by a doctor (a senior house registrar) reporting that  she had experienced reduced fetal movement which concerned her. The female doctor performed an ultrasound scan and was satisfied that the baby was not in a breech position and the baby’s head was facing down and was ready to be delivered which explained the lack of movement. 
  • The defendant on the other hand maintained that the claimant did not raise a concern about reduced fetal movement at the appointment. Furthermore, the female doctor did not perform the ultrasound scan but saw the claimant after it had taken place and made a note confirming active fetal movement. The defendant also argued that if the claimant had raised a concern about the reduced fetal movement then this would have been recorded.

 

Who did the judge believe?

The judge preferred the claimant mother’s witness evidence, even though there was a note in the medical records which contradicted her evidence. It may seem surprising that the judge found in favour of the claimant on the basis of the recollection of witnesses 17 years after the incident, rather than relying on medical records compiled at the time, but there were particular issues which led the judge to find in the claimant’s favour:

  • The judge was concerned about the incorrect and misleading comments made by the defendant doctor, stating that she had never undertaken presentation ultrasound scans and she had never seen doctors undertaking presentation scans in the ante-natal clinic. Yet there was evidence from other medical professionals working at the Trust that this practice was quite common. This significantly undermined the reliability of the defendant’s evidence. 
  • In relation to the medical note, the judge considered that whilst it recorded active fetal movement, this did not preclude concern having been expressed by the claimant that there had been reduced fetal movement. 
  • The defendant argued that, as there was no record of the claimant’s concern about reduced fetal movement, this meant that the claimant did not raise it. However, the judge believed that the doctor’s recollection had been affected by the intervening years of practice and emphasis amongst the practitioners on reduced fetal movement. 
  • Finally, the claimant had prepared her initial witness statement in 2012 without sight of the medical records and was reliant on her recollection only. She had been proved right on certain issues. The judge therefore found that the defendant was more likely than not to have undertaken the ultrasound scan and that the claimant had indeed told the defendant that she was concerned about the reduced fetal movement. The defendant was therefore in breach of their duty.

This case is a good example of the forensic and analytical approach which the court takes when assessing the factual evidence in a case. This judgement also underlines the importance of claimants preparing accurate witness evidence to explain the context of the medical appointment.

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Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022

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