Clinical negligence claims - the claimant's recollection vs the medical records

Posted: 17/12/2021

While many clinical negligence claims turn solely on what is (and is not) in the contemporaneous medical records (for example, how, when, and to whom a medical investigation such as an x-ray is reported), a large number of cases involve a dispute over those records and the accuracy of the content recorded in them or perhaps not recorded at all.

Many cases involving a delay in diagnosis have medical records that, at face value, do not record anything that should have raised concerns in a particular direction but a patient who is adamant that they reported a certain symptom which was not properly recorded, considered and acted upon. 

Cases involving informed consent nearly always have a scenario where the patient either denies that they were given certain information that was relevant to their decision-making or the records simply refer to generic advice with no specifics as to what was and wasn’t discussed. Conflict between medical records and recollection in these cases is therefore not unusual.

The court’s starting point is that the records are an accurate and contemporaneous record prepared at the time and not in anticipation of litigation. The court should be cautious about holding records inaccurate without good evidence that this is the case.  Similarly, it should be aware that recollection can be affected by lapse of time and hindsight.  More often the issue is less about what is in the records and more about what is not in there. However, there are some cases where the claimant’s case is that the records are simply wrong.

HTR v Nottingham University Hospitals NHS Trust [2021] EWHC 3228 (QB)

This recent case went to trial on this issue and related to the management of the claimant’s mother’s pregnancy.  The claimant’s mother had been under the care of Nottingham University Hospitals NHS Trust for her pregnancy 17 years ago in October 2004. It was agreed and accepted that she attended the antenatal clinic at the hospital four days before the claimant was born because her baby was in a breech position and the community midwife had referred her to the clinic. 

What was in dispute was what the claimant’s mother reported.  Her case was that she specifically told the doctor that she was experiencing reduced fetal movement from her baby.  Her evidence was that she reported this concern and that an ultrasound was performed, following which she was advised that there were no indicators of concern. 

The medical records did not make any reference to the claimant’s mother reporting reduced foetal movements and, in fact, stated that there were active fetal movements, referred to as ‘Active FMs’. The trust’s position was that reduced fetal movement was not reported and that had it been so, it would have been acted upon.

The claimant was delivered four days later on 10 October by emergency caesarean section after his mother attended the hospital again. He suffered permanent damage from chronic partial hypoxia which has resulted in asymmetric quadriplegic cerebral palsy.  The basis of his claim was that, when his mother attended the clinic reporting reduced fetal movements, there was a failure to take appropriate action in response to that report. 

As above, there was a clear difference between the medical records and the claimant’s mother’s evidence.  However, it was agreed between the parties that, if it was found that the claimant’s mother did report the reduced fetal movements and no action was taken, that would constitute unacceptable care and a breach of duty.  The dispute was therefore purely factual.

When solicitors or the court consider evidence from a claimant, the claimant’s recollection of surrounding detail needed to be carefully examined. Who did they talk to, where were they at the time, who did what etc?  One of the interesting aspects of the HTR case was that the claimant’s mother was adamant that the doctor to whom she reported the reduced fetal movements was the person who did her ultrasound. 

The trust denied that this doctor had been the one who did the ultrasound and used that point to seek to undermine the credibility of the rest of the claimant’s mother’s recollection.  When the doctor in question was called to give evidence at trial she had said in her witness evidence that she had not been trained to do ultrasound and therefore did not do them and that the claimant’s mother’s recollection must be wrong as it could not have been her that did the scan. 

However, the evidence of other doctors from the trust was that, in fact, this doctor had occasionally undertaken ultrasound scans and that it was quite common for doctors working in the clinic to do so.  In cross examination, the doctor concerned conceded, contrary to her witness evidence, that she had been trained to do scans and did so from time to time.

In considering the conflicting evidence in order to make a finding, the judge, Cotter J focused specifically on the evidence given by the doctor that she did not and had not performed ultrasound scans which was undermined by other evidence from the trust’s own witnesses. He said: “I received no satisfactory explanation for this very seriously misleading assertion… It resulted in the balance of her evidence, when not corroborated by records or other witnesses, having to be treated with considerable caution."

In giving his judgment, Cotter J looked back at case law on the issue of how medical records should be regarded when they conflict with a claimant or witness’s recollection.  Below are some of the points he drew from his review.

• It is too obvious to need stating that simply because a document is apparently contemporary does not absolve the court of deciding whether it is a reliable record 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.
• As a contemporaneous record that (a doctor) was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate.
• A court can and often will taking a starting point, but no more than a starting point, that a contemporaneous entry made by a medical professional is likely to be a correct and accurate record of what was said and done at a consultation/examination.
• When evaluating the evidence of a witness whose testimony has been challenged it should be broken down into its component parts. If one element is incorrect it may but does not necessarily mean that the rest of the evidence is unreliable.

Having heard all of the evidence, Cotter J concluded that: “The critical medical note records active foetal movement (Active FMs). However, such an entry, which does not state if the movements were seen on scan or reported by LJR, does not preclude concern having been expressed by LJR that there had been reduced (as opposed to no) movement recently. Dr Salman’s evidence was that if such concern has been expressed she would have recorded it, and as she had not made a record of such a concern it cannot have been raised. However, as I have already stated, I believe that her recollection has been affected by the intervening years of practice and the greater emphasis on reduced fetal movement since 2011."

His findings of fact covered some preliminary points and then went on to conclude that the doctor that performed the scan was the one that the claimant’s mother said had done so and that the claimant’s mother had reported the reduced fetal movements to that same doctor. Therefore, judgment for the claimant on breach of duty was given on the basis that, in light of those findings, the trust (by that doctor) had failed to take appropriate action in response to a report of reduced fetal movements.

This case shows how the outcome can turn on one small aspect of witness evidence.  One might have expected that, given the lapse of time, the outcome would have been that the records were held more likely to be accurate than the claimant’s mother’s recollection.  However once the evidence of the doctor in question that she had not performed the scan and, more specifically, her categoric assertion that she did not perform ultrasound scans, was found to be factually incorrect, Cotter J concluded that the evidence of the claimant’s mother was, in this case, to be preferred.

This was despite the fact that, when she did attend the hospital several days after the appointment, she did not at that stage mention the previous report of reduced fetal movements (or at least this was not documented).  This is a point that would normally be given quite significant weight. Records of the history given soon after the events in dispute is often key in these cases.  One of the points in this case is that the judge accepted evidence of the comments made by the particular doctor after the claimant’s delivery that suggested that she was aware of the report of reduced fetal movements and that she had failed to respond appropriately.

It was perhaps significant in this case that the records did not totally conflict with the claimant’s evidence. The reference to active movement did not exclude that movements were reduced and that this had been discussed. The conflict was greater between the stance taken by the trust that the reduced movements were not reported and that the claimant’s mother was wrong about who had given her the ultrasound and was therefore likely to be wrong on other factual points.

So, what does this case give us?  Firstly, it is clearly a reminder that the medical records can be open to challenge. Although the received wisdom is that they are likely to be accurate, in appropriate cases the courts are prepared to find that they are not.  It is also a reminder of the importance of clear, detailed and carefully tested witness evidence. Once a witness is discredited on an important fact - as the trust doctor was in this case - it is likely to be an uphill struggle to persuade the court to accept other aspects of their evidence that conflict with the records or other witnesses.

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