It is not an uncommon occurrence in medical negligence cases that there is a discrepancy between the evidence given by the patient of events and what the clinical staff record within the medical records; this blog considers this issue and how the issue was addressed by the Court of Appeal in a particular recent case.
Inconsistent evidence in medical records can be a real obstacle to a Claimant in trying to pursue their medical negligence case. The general mind set of the Court is frequently that medical records stand as an accurate, unbiased and contemporaneous account of events and can be relied upon in evidence. However a recent case went to trial where a patient successfully pleaded to the Court that his version of events was to be preferred over the notes made in his medical records as to his condition prior to discharge from hospital. It is important reassurance for Claimants that Judges will not take a carte blanche approach when assessing factual disputes in cases and will look at all the evidence in the round.
The case of Mr Robert Synclair v East Lancashire Hospitals NHS Trust  went to the Court of Appeal in December 2015 after the original trial was heard in Manchester. This was a medical negligence case surrounding the care afforded to Mr Synclair (the Claimant) in hospital in 2009 where he was admitted for surgical repair of a parastomal hernia where he had a colostomy bag already in place. The Claimant failed in his primary claim that the surgery was negligently performed and so proceeded with a secondary argument that his post surgical complications were not picked up and he was negligently discharged from hospital instead of being sent back to theatre for revision surgery. Mr Synclair’s condition deteriorated after he was discharged and by the time he was readmitted to hospital the stoma was necrotic and had to be moved and re-positioned.
The case rested on whether Mr Synclair could prove that he complained of feeling ill, being in continued pain and having a discoloured (darkened) stoma. The medical recorded stated that the stoma was normal in colour and that Mr Synclair had no symptoms, which he disputed.
The court looked at the medical records as a whole and noted that in the evening prior to discharge Mr Synclair had medication to deal with pain and sickness and against this background it was unlikely he told the doctor the following morning that he was feeling well.
It was noted that the entry in the medical records had not been made by the doctor who examined the Claimant before he was discharged, but by a different, more junior doctor. It was not clear if this junior doctor had been present at the examination, or simply scribing the records, or whether the examining doctor had checked what had been recorded on his behalf for accuracy.
The Judge also noted that Mrs Synclair, the Claimant’s wife, gave clear and unchallenged evidence that her husband had discussed his conversation with the discharging doctor and explained his concerns about the discoloured stoma.
The Court preferred the evidence of Mr Synclair to the evidence of the Defendant Hospital because they found both Mr and Mrs Synclair to have been truthful, reliable and sensible witnesses, which gave a proper account of their recollections with good reasoning. Indeed their evidence was borne out by subsequent events. The Trust’s Doctor on the other hand could not recall the circumstances of the discharge beyond what was in the medical record, and the Junior Doctor who made the medical entry was not put forward to give evidence at trial.
The Judge concluded that the medical record of the examination of the Claimant on the day he was discharged was unreliable and that the Defendant hospital had breached their duty of care to the Claimant in discharging him, and awarded compensation to the Claimant for his injuries. The Defendant hospital appealed.
The Court of Appeal Judges had to consider whether the Judge in the first instance was correct to reach the conclusion that he did, most specifically that the medical record was unreliable and that the Claimant’s factual evidence of the examination should be preferred.
In the Judgement, Lord Justice Tomlinson stated: “….simply because a document is apparently contemporary does not absolve the court of deciding whether it is a reliable records and what weight can be given to it. Some documents are by their nature likely to be reliable, and medical records ordinarily fall into that category.”
He went on to comment that: “The real difficult which the judge faced in the present case was that he had no evidence of the circumstances in which the relevant clinical note had been made.”
The Appeal Judge concluded: “I am satisfied that the [first instance] judge had in mind and weighed in the balance as part of a single compendious fact-finding exercise the inherent probability of what he was asked to decide. I am satisfied that he took into account the totality of the evidence and that in the light thereof he was entitled to conclude that the clinical record was in the respects identified inaccurate.” The Hospital lost their Appeal and the Claimant’s case succeeded.
It is very reassuring that the Courts are prepared to listen carefully to the voice of the patient and not simply take it as read that the Doctor’s entry is always correct and unchallengeable. These cases will always turn on their specific facts. Doctors need to ensure that their records are recorded within context and that it is explicitly clear who made the note and in what circumstances. It is also important for Claimants to record their witness statement evidence clearly and accurately as early as possible as memories do fade over time, clearly the more contemporaneously a recollection is recorded the better.