He said, she said

In the context of weighing up the evidential strength of medical records, lawyers often say that if something wasn't written down, it didn't happen. But can it be said that simply because something has been written down at the time, it must be absolutely accurate and exempt from challenge? Or that the absence of a record is proof that a particular issue was not mentioned by the patient? Not necessarily. It is always going to be a challenge to convince a judge that contemporaneous medical records are inaccurate; however, this very issue has come to light in several medical negligence cases over recent years. 

Andrews v Greater Glasgow Health Board

One such case is Andrews v Greater Glasgow Health Board [2019] CSOH 31, at the core of which was a dispute between the pursuer's evidence and the medical records written at the time. The case related to the death of the pursuer's partner, Jean Graham. Andrews had accompanied Graham to Glasgow Royal Infirmary where she was assessed by a junior doctor. The doctor made a diagnosis of likely gastroenteritis and noted in the medical records that Graham “would like to go home” and could cope at home. She was discharged and tragically died of an ischaemic bowel shortly afterwards. 

Andrews' position in his oral evidence was totally contrary to the records, and he stated that it was “utter nonsense” to suggest that Graham wanted to go home as she was not fit to do so, she was worried about being discharged, and she was scared. The doctor in question had no recollection of either Andrews or Graham, and had to rely on the clinical notes in his evidence. 

The judge, Lord Pentland, found Andrews to have been an “impressive witness” who gave “cogent evidence that the deceased did not want to be discharged”. In addition, his position was supported by two other pieces of evidence: a complaint email he wrote shortly after Graham's death; and the minutes of a meeting he had with representatives of the health board. In both documents, Andrews had reiterated that Graham was sent home despite being very ill, and he refuted that she had expressed a wish to go home. Lord Pentland felt that the clinical records were not an “accurate reflection of the deceased's wishes”, and Andrews' claim was successful.

A valuable lesson for pursuer lawyers can be taken from Andrews – that we ought not be too quick to dismiss a client's claim that “that's not how it happened”, simply because the records state otherwise. 

Ismail v Joyce

Ismail v Joyce [2020] EWHC 3453 (QB) is a case concerning whether or not the treating GPs ought to have referred Naziyah Ismail for a chest x-ray in light of symptoms suggesting she might have tuberculosis. It transpired that she was suffering from TB, and that the infection had spread from her lungs to other organs including her brain and spinal cord. As a result of her delayed diagnosis, she was left with residual brain and spinal cord damage resulting in her being reliant on a wheelchair. Ismail and her sister both gave evidence that, on two separate attendances at the GP practice, they informed the respective GPs that she had been coughing up specks of blood. This was not recorded by either GP in the records.

In his judgment, Judge Freedman made reference to the “inherent unreliability of memory”, and in relation to this element of their evidence, he felt that the sisters must be mistaken in their recollections. However, another factual discrepancy arose in relation to whether the claimant had told one of the GPs that she was suffering from “drenching” night sweats – a claim the defence team denied. On this point, the judge found in favour of the claimant. 

He stated: “It may be said that, on the one hand, to reject the claimant and her sister's evidence about telling Dr Wood and Dr Joyce about the blood in the saliva and, then, to accept their evidence about the drenching night sweats is in some way inconsistent. I am satisfied that it is not. The major difference is that whereas Dr Joyce does not make any record of blood in the saliva, he has made reference in his note to the claimant being 'sweaty at night'. That is a very important distinction. Moreover, as I have observed, there is a good deal of support in the medical records for the fact that, over time, the claimant had suffered night sweats.” 

He also stated, earlier in his judgment: “Of course, these observations do not mean that, in every instance, where there are factual issues, the claimant's evidence falls to be preferred. Her evidence must be scrutinised and looked at with caution.” The claim was ultimately successful. 

The evaluation in Ismail was referred to recently in Sheard v Tri Do [2021] EWHC 2166 (QB). Judge Robinson felt that the evidence given by the claimant in this case was “unquestionably truthful in the sense that the claimant genuinely believed it”, but it was his task to establish whether that evidence was accurate and reliable. 

Some failed claims

The most frequently referenced case on this subject is Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), where Leggatt J observed that the legal system does not sufficiently take account of the considerable research that has been carried out into the nature of memory and the unreliability of eyewitness testimony. This research has shown that most of us have more faith in our memories than they are perhaps due, and that our memories are fluid and pliable, being reworked whenever they are evoked. 

It is clearly important to manage a client's expectations, as acceptance of their oral evidence does not necessarily go hand-in-hand with success. In Failes v Oxford University Hospitals NHS Trust [2020] EWHC 3333 (QB), whilst the judge felt that what had been recorded by the doctor at the time in question did not reflect the actual picture, and that there had been a breach of duty on the part of the doctor, he did not find that this was causative of any injury and the claim failed. 

A further case of note is Johnstone v NHS Grampian [2019] CSOH 90. Johnstone had undergone an operation in 2011 to remove a tumour in his pituitary gland as it was causing his body to produce excessive growth hormones. He had undergone a similar procedure roughly 30 years previously. Unfortunately, following the procedure in 2011, he was diagnosed with meningitis. Johnstone argued that while he had consented to the operation, he had not been fully informed of the risks it might pose and of the alternative treatment options. The defender contended that he had been appropriately consented for the procedure. 

The judge, Lord Glennie, concluded that Johnstone had been informed of the risks and alternatives, and the action failed. He considered that the success of the previous procedure must have had an impact on Johnstone's decision to undergo the procedure again. None of the witnesses could be considered inherently more or less reliable than others, and it was necessary to draw inferences from the documentary evidence put before him. There was a discrepancy between the position of Johnstone (who was clear that the risks had not been discussed with him) and the medical records written at the time (which indicated that the risks had been discussed). In this case, the documentary evidence outweighed Johnstone's oral evidence, and his claim failed.

Unenviable task

In Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283, the Court of Appeal held that contemporaneous medical records are “inherently likely to be accurate”. It follows that, in the majority of clinical negligence cases, the medical records will form the starting point from which the court will begin its analysis; however, it is reassuring to know that they will not simply be taken as read without scrutiny. 

The court's task of deciding where the truth lies is an unenviable one, and guidance was given by Warby J in R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin). Citing Kimathi v Foreign & Commonwealth Office [2018] EWHC 2066 (QB), Warby J stated: “The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. 'This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth'.” 

Warby J also cited a judgment from Mostyn J in Lachaux v Lachaux [2017] EWHC 385 (Fam); [2017] 4 WLR 57: "Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his personal recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”

Compelling evidence?

There are several points to be taken from a consideration of recent cases which have taken steps towards addressing this issue. First, simply because something does not feature in the clinical records, it does not follow that it was not mentioned by the patient. Inevitably, things will be discussed that are omitted from the records – resources do not allow sufficient time for clinicians to note down every single detail during a consultation, so a degree of paraphrasing is no doubt required. However, from the point of view of the courts, the most compelling evidence must surely be those records made at the time – they are, after all, a primary source. 

In some situations, it could be argued that the patient's recollection is likely to be stronger than that of a clinician – after all, whatever has happened is likely to be a relatively novel situation for the patient, and could therefore be expected to stand out in their mind, whereas the clinician will presumably have dealt with the issue on a number of occasions. Nevertheless, depending on the specific scenario, the patient may have been receiving strong painkillers, or may have been unconscious for elements of their treatment, and so their recollection of events may not be entirely reliable.

Of note is the fact that videorecordings of medical consultations can now form part of patient records, and perhaps this is something that may become more commonplace as this issue has been highlighted in several recent cases. 

At the end of the day, as with all litigation, there are no guarantees. To quote the bard, all we can hope is that “at the length truth will out”.