A new frontier in the boundary between professional and private life – solicitors’ undertakings
The recent decision of Mrs Justice McGowan in the case of FE (represented by his Litigation Friend PE) v. St Georges University Hospitals NHS Trust demonstrates the dangers run by Defendants in defending claims where the medical records and recording of notes is extremely poor.
As clinical negligence lawyers, we are very used to reviewing medical records and unfortunately it is not uncommon for us to receive notes which have been poorly recorded, are illegible or in some cases, contradictory. Poor record keeping is not sufficient in itself to make a winning case for a Claimant, but this recent Judgment makes clear that it is likely to be perceived in a negative light by Judges.
In FE (represented by his Litigation Friend PE) v. St Georges University Hospitals NHS Trust the Claimant was born in January 2001 at St George’s Hospital. It was agreed between the Claimant and the Defendant that if the Claimant had been born at or before 03.11, he would not have suffered neurological damage (cerebral palsy). The Claimant was in fact born at 03.16, demonstrating the very fine timings which often come into play in cases involving birth injuries. The trial covered liability and causation only. If the Claimant was successful, quantum (the level of any damages) was to be dealt with at a separate trial. At trial, the Claimant was therefore seeking to prove that the Defendant was negligent, and it was this negligence that caused his neurological damage.
The Claimant was successful. While the poor record keeping in question was not the only reason the Claimant’s claim was successful, it is clear from reviewing the Judgment that it played a significant part in the overall evidence which was given at trial. Mrs Justice McGowan was critical of the standard of record keeping displayed by the Defendant and it is clear that the state of the medical records had an impact on the perception of the Defendant’s witnesses.
By way of example, the Judgment notes that the names of medical personnel are inaccurately recorded and sometimes, but not always, corrected later. Theatre notes were altered by overwriting without authorship. Importantly, crucial events, if they did in fact occur, were not recorded in the notes at all; the Judgment makes particular reference to the stopping of the administration of syntocinon. The Judge also states that in her view, the midwifery expert was “handicapped in her critique of the care given on the night by the imperfections in the notes and record keeping…”
Some of the comments in the Judgment in relation to the records are scathing and the theatre records are referred to as “shambolic”. It is also noted that timings have been altered and no signatures or initials have been applied and therefore no explanations can be given for the “appalling” state of record keeping. The Judge notes that this is particularly strange when it would have been obvious to all parties by 03.16 that what was happening (and the precise timing of what was happening) would be of great significance. Interestingly, the Judge notes “It would be difficult not to be somewhat cynical about the nature of that piece of record keeping [the theatre notes] were it not for the fact that it is so generally awful”.
Therefore, the Judgment does not suggest that the poor note keeping was deliberate, but it is clear that it certainly undermined the Defendant’s case. It also seemed to undermine the evidence that certain witnesses for the Defendant gave, for example one doctor would record the fact that her notes were sometimes made up in retrospect but she would not do this necessarily every time that this was the case. The Judge therefore noted that it was difficult to place much confidence in her note recording.
In her conclusion, the Judge noted:
“iii) That the standard of record keeping was unsatisfactory, notwithstanding the workload.
a) All notes should have been acknowledged by signature or initial at the very least.
b) Theatre records should not have been altered without acknowledgment.
c) There should have been a method by which notes could be matched to the timing of an event on the CTC [sic] trace.
d) If a time recording device is capable of going wrong then there should have been an adequate means of regular checks.
e) It is unacceptable that the administration of oxytocin is not properly recorded; the doctors should not be working on the presumption that it had been stopped simply because they would have expected it to be stopped.”
Whilst there were obviously other factors and persuasive reasons why the Claimant’s claim succeeded, it is heartening to see such firm judicial treatment of poor record keeping. The fact that notes are often in such disarray is something which many of our clients find distressing and only compounds the sense that they have been badly let down by a medical professional.
For further information, please contact our clinical negligence team on 020 7814 1200.
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