How does the Court resolve the situation where the claimant’s medical records do not match his or her version of events, or do not record events as they occurred? This is the difficulty the Court faced in two recent unrelated cases: Ismail -v- Joyce and Failes -v- Oxford University Hospitals NHS Trust.
Ismail involved a claim against a GP , this concerned whether the GP should have referred the Claimant for a chest x-ray because there were signs she might be suffering from tuberculosis. The Claimant was subsequently diagnosed as suffering from tuberculosis infecting her lung and other organs including her brain and spinal cord. As a result of the delay in diagnosis the Claimant was left with residual brain damage coupled with spinal cord damage. A central part of the Claimant’s case was that she and her sister, when attending the GP surgery, told the Defendant GP that she had been coughing specs of blood. This was not recorded within the GP’s contemporaneous notes.
Failes concerned a Claimant who underwent complex surgery to remove a tumour from his spinal cord and experienced a post-operative cerebrospinal fluid leak. The leak caused the Claimant’s spinal cord to herniate leading to ischaemic myelopathy and permanent damage. A single factual issue was at the heart of the case – when did the Claimant’s condition deteriorate? Unfortunately, the medical records contained gaps which meant it was not possible to ascertain exactly when the Claimant’s condition had deteriorated. It was necessary to piece together a chronology of events by analysing the medical records and the Claimant’s recollection of events.
In both cases the Court considered the totality of evidence (witness statements and documentary) and carried out a careful and systematic analysis. Contemporary documents – medical records – were considered to be the most important category of documents and would form the starting point for the Court’s analysis. The assumption was 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. This assumption is based on the recognition that clinical records are made pursuant to a clear professional duty, serious failure in which could put at risk a practitioner’s registration. Medical records are not compiled as a historical record, they fulfil an essential and ongoing purpose in informing the care and treatment of a patient. For these reasons, the Court of Appeal in Synclair -v- East Lancashire Hospitals NHS Trust held contemporaneous medical records are “inherently likely to be accurate.” This assumption, however, is nothing more than a starting point. Although important, medical records are not taken as read without analysis.
Ismail and Failes highlight the approach the Court will take while conducting that analysis. Firstly, while reviewing medical records the Court will have regard to the context in which the records were produced and their limitations. Medical records need to be scrutinised with these limitations in mind:
- Just because the complaint of a particular symptom does not feature in the record of a consultation, it does not follow that it was not mentioned by the patient. Sometimes a doctor will obtain an extensive history and make a very detailed record; sometimes, because of pressure of work or for whatever other reason, a doctor may take a less extensive history and will make a somewhat briefer note.
- It is human nature for a patient not always to give precisely the same account of his or her symptoms to every doctor. Much may depend upon the questions asked by the doctor and how the questions were framed.
- The patient is likely to emphasise and stress the symptoms which are troubling them the most at the time of the examination.
After analysing the contemporaneous medical records, the Court turns to the claimant’s recollection of events. When comparing the medical records against the claimant’s witness evidence, there may be situations where the records do not necessarily bear out what is recalled by the claimant. In these circumstances the Court will acknowledge the inherent unreliability of the human memory which means it is fair and proper to test the accuracy of recollections of medical consultations against what is documented in the records.
Only after acknowledging the context in which contemporaneous records are produced and analysing the witness’s recollection of events can the Court make a finding of fact. The best approach is for the Court to make findings of fact on inferences drawn from documentary evidence and known probable facts. Above all, it is important to avoid the fallacy that, because a witness has a confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
Just because in some instances, it is not possible to accept a witness’s evidence as to what happened or what was said, that finding does not render them an unreliable witness, in the sense that the totality of their evidence falls to be rejected.
What practical issues arise from these decisions? It always has been a high hurdle to clear to persuade the Court that the contemporaneous medical records are inaccurate. Ismail and Failes do not add anything new to the burden of proof upon a claimant. They are, however, good examples of the forensic and analytical approach the Court will take to assessing factual evidence. Witness statements are only part of the factual evidence presented at trial. Inferences can be drawn from the content of the medical records. Do the record themselves point to key factual issues or document how the claimant was describing his or her symptoms at the time? Also, are other classes of factual evidence available? For example, letters of complaint submitted shortly after the events in question, text or Whatsapp messages from the claimant to family members describing events as they occurred, social media postings or diary entries kept contemporaneously. Evidence falling into this category will form part of the Court’s analysis if asked to make findings of fact. The more there is by way of compelling contemporaneous evidence supporting a claimant’s version of events the more likely the Court will determine findings of fact in the claimant’s favour.
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