A matter of fact: establishing facts in a medical negligence case
In my blog on 5 January 2021 I summarised the approach the Courts take to establishing facts in a medical negligence case, especially in a situation where a claimant’s medical records do not match his or her version of events. My blog covered the Court decisions in the cases of Ismail and Failes which are good examples of the forensic and analytical approach a judge will take when assessing factual evidence. The Court starts with the contemporaneous medical records and will analyse the context in which the records were produced and cross reference with other sources of evidence.
The recent decision in the case of Malik -v- St George’s University Hospital NHS Foundation Trust provides a further example of this approach. Mr Malik required emergency spinal surgery in the form of a laminectomy and discectomy at T10/11. No criticism was made of the performance of the surgery. Post-operatively Mr Malik experienced ongoing numbness and weakness in his left leg. His surgeon recommended further revision decompression surgery which unfortunately left Mr Malik with an incomplete paraparesis. He was classified as a T7 ASIA D paraplegic.
The case concerned the extent to which Mr Malik’s condition had deteriorated after the emergency surgery and whether he was complaining of intercostal pain when seen by his surgeon in outpatient clinic. In addition to the type, and duration, of pain Mr Malik experienced following the emergency surgery, allegations of negligence were advanced in relation to whether revision surgery should have been performed, whether non-surgical alternatives should have been offered and whether Mr Malik was given the opportunity to give informed consent for the revision surgery.
There was a factual dispute as to the extent of deterioration Mr Malik experienced in the period between the emergency surgery and the revision procedure.
Faced with this discrepancy, His Honour Judge Blair QC undertook an analysis of not only the contemporaneous medical records, but the records produced by Mr Malik’s GP and an assessment report prepared to assess whether Mr Malik was entitled to a Personal Independence Payment. The Judge concluded that even giving Mr Malik considerable latitude for the difficulties of recall after so many years, the stress of giving evidence at trial, his ongoing poor state of health and a natural desire to present his case in the best light, there were elements of his answers which did not give the Judge confidence in his reliability and accuracy as a witness.
The Court followed an analytical and forensic approach as is typically the case when presented with a factual dispute and concluded that when considering all of the relevant evidence and giving it the weight it was due, Mr Malik was not able to persuade the Judge of his collection of events.
The approach taken highlights the Court will not take a claimant’s witness statement as established fact. Witness statements only form part of the evidence in a medical negligence case and are analysed in the context of contemporaneous records. As stated in my previous blog, 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.
Malik is also a helpful case to remind practitioners of the approach the law takes to consent. The leading case of Montgomery identifies there is a duty to take reasonable care to ensure a patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. When assessing what is a reasonable alternative, the Court will apply the Bolam test - would any reasonable body of medical practitioners in that particular field have been aware of and considered reasonable alternative treatments in the case in question. In Mr Malik’s case the Judge considered that a responsible, competent and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion Mr Malik had with his surgeon.
Finally, the Malik case serves as useful reminder to the medical profession as to the importance of contemporaneous notes. The Court will attach a great deal of weight to contemporaneous medical records when reconstructing events many years after the event. The surgeon in Mr Malik’s case had a practice of dictating letters to the patient’s GP immediately after outpatient consultations and did not keep handwritten or typed contemporaneous notes of each appointment. Commenting on this approach the Judge stated: “I was taken aback by his practice of simply dictating a letter to his patient’s GP after an outpatient clinic appointment to relay the details of his patient’s current symptoms, recording his clinical assessment, giving his opinion as to appropriate treatment(s) but omitting to state what advice he has given about the risks and benefits of the avenue(s) open to the patient. That is a practice which it seems to me is fraught with risks of being unable confidently to answer important questions many years later without having the benefit of a contemporaneous set of detailed notes.”
This warning highlights that contemporaneous records can be of benefit to both parties – a claimant requires contemporaneous records to support his/her version of events; a defendant requires contemporaneous records to justify their thought process and steps taken. Either way, contemporaneous records and the context within which they were produced can influence the outcome of a medical negligence case.
Richard Lodge is a Partner in the Medical Negligence and Personal Injury practice and has been recognised within the field of clinical/medical negligence within the Chambers UK and Legal 500 directories. He is an individually ranked lawyer for clinical negligence within Chambers UK, A Client’s Guide to the UK Legal Profession.
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