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Poor keeping of medical records : What of it?

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    Paul Rumley considers the importance of medical records in clinical negligence cases, and the difficulties that can arise with poorly kept medical records.

    By Paul Rumley

Poor medical record keeping has once again been highlighted by the Court in the medical negligence case of FE (Represented by his Litigation Friend PE) –v- St George’s University Hospitals NHS Trust [1]. Whilst poor or inaccurate record keeping is not necessarily decisive in a medical negligence claim, it nevertheless can put the Defendant in a poor light and so influence the approach of the Judge to the more substantive matters in a claim.

The facts of the case

The case of FE involved a delay in birth, such that the baby suffered hypoxic-ischaemic brain damage.

In the case, it was agreed that if the baby had been born by a certain time, he would have suffered no brain damage.

The judgement found that the Defendant was liable for the Claimant’s brain damage on the basis that he could and should have been born earlier thereby avoiding the brain damage. Whilst that was the ultimate decision, a significant side issue was identified and strongly criticised in terms of the poor record keeping at the Defendant Hospital. Whilst the Judge accepted that at the time of the Claimant’s birth, the hospital was very busy, she nevertheless found the following faults:

1. Notes were not always acknowledged, in terms of who had written them, by a signature or an initial;

2. Theatre records were altered, and there was no indication as to who had done that;

3. There was no match between notes for the timing of an event on the CTG trace of the baby’s heartrate;

4. There was no record of when the administration of a drug to speed up labour – Syntocinon – was stopped. The Judge, Mrs Justice McGowan, commented in particular: “…the doctors should not be working on the presumption that it had been stopped simply because they would have expected it to be stopped”.

The Judge noted that the expert midwife, advising the Court on the standard of care provided, was hampered in her evidence by the poor record keeping. She then went even further judging the theatre records to be “wholly unreliable”, were in a “shambolic state”, that “…no explanations can be given for the appalling state of record keeping when it was obvious to all… that the events of the night and their precise timing would be of great significance”, and if that was not bad enough she then added “…It would be difficult not to be somewhat cynical about the nature of that piece of record keeping were it not for the fact that it is so generally awful”.

In summary, the Judge reached this conclusion in respect of the main clinical witness for the Defendant: “…It is difficult to place much confidence in her note recording”.

Whilst the primary issue in the case was about the timescale for delivery, clearly the poor record keeping did not reflect well upon the main Defendant clinical witness and it is very clear that the Judge was not impressed by that.

What is the impact of poor record keeping?

Whilst the record keeping didn’t decide this case, clearly the credibility of factual witnesses is very important and to a Defendant the overall impression of whether the care provided was good or poor can clearly influence the overall view taken.

Poor record keeping, in the context of allegations of specific negligence, only adds to the picture of a Defendant which was not providing an appropriate standard of care.

Our Experience

Poor record keeping is also a feature of some of our cases, and in particular the many birth injury cases we investigate.

One case in particular which I was involved in, partly focused upon the inaccurate record keeping around the Apgar score. This is a subjective score given to a new-born baby to show whether or not they are in good condition. It looks at factors such as breathing, colour and tone to give a total score out of 10.  A baby with a score of 9 or 10 is in good condition.

In my particular case, the Apgar scores apparently showed a baby born in very good condition. The Defendant hospital relied upon that to show that there were no sufficient signs of problems prior to birth, which they should have been aware of, and which should have resulted in earlier birth of that baby via a caesarean section. Furthermore, any failings had not affected the condition of the baby in any event.

By focusing upon other evidence in the records however, with the independent medical experts, we were able to show that the Apgar scores could not possibly be correct. In particular, blood tests showed such a high level of acidity in the blood, reflecting a lack of oxygen just prior to birth, that we were able to argue very strongly that the baby could not possibly have been in good condition, and so the Apgar scores were inaccurate.

As with case of FE, that point was not the sole basis for my client’s claim, but interestingly it must have added to the overall picture of negligent care we had presented, because the Defendant eventually made an early admission of liability for the injuries my client suffered.

Record keeping – A sword that swings both ways

Whenever I give talks – including to the medical profession – I always highlight the need for good record keeping. As can be seen from the case of FE, and my own case I refer to above, poor record keeping can contribute ultimately to a finding of negligence and a multi-million pound compensation award.

Conversely, good record keeping can be the fundamental basis for a successful defence to a medical negligence claim.

It remains the case that the medical records in any medical negligence claim have to be examined very carefully as they can hold the key to whether or not a client has a potentially successful claim. It is why specialist medical negligence lawyers are vital to carrying out that very important and in essence forensic work as part of the process of assessing the strengths and weaknesses of potential claims.

[1] [2016] EWHC 553 (QB)

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