The value of contemporaneous documentation

Records and notes made at the time of clinical practice – notes of an examination, operation records etc or letters or emails sent immediately afterwards – will carry substantial weight in court or other tribunals or hearings if the events to which they relate come under scrutiny at a later date, for example in a claim for damages or for professional misconduct.

In Clinical Practice and the Law – a legal primer for clinicians Section 2.4 I wrote:

In understanding the lawyer’s mind it is important to keep in mind the distinction between an oral (spoken) account of something which has happened and a contemporaneous (or near contemporaneous) written record.  With the best of intention, memory is fickle, often selective, weighted by cognitive bias and often lacking in detail, but it is also subject to innocent re-interpretation in the light of subsequent knowledge or facts.  And of course it may be adapted, intentionally or unintentionally, in order to excuse past actions or inaction.  In contrast, a written record, although it may be falsified, if genuinely made contemporaneously to the events to which it relates, reduces the chances of all of these failings.

This means that a careful, full and explanatory record made at the time of the events to which it relates (or made very shortly afterwards) is likely to carry greater weight when seeking to ascertain what happened and why, than an oral account given subsequently when the events are being put under a critical microscope in court or some other hearing or process.

In a recent case Simetra Global Assets Ltd & Richcroft Investments Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, and in a non-clinical setting, the Court of Appeal made the same point, in criticising the trial judge for failing to explain why he did not accept the evidence provided by contemporaneous records:

A party’s internal documents, including email and instant messaging, tended to show a witness’s true thoughts and were generally regarded as more reliable than their oral evidence or demeanour in court.  Therefore, where contemporary documents which appeared on their face to provide cogent evidence contrary to the conclusion the judge proposed to reach, the judge should explain why they were not to be taken at face value or were outweighed by other compelling considerations.

It is difficult to over-emphasise the importance of ensuring that the clinician makes clear and comprehensible notes and records at the time of, or very shortly after, any involvement with a patient.  Not only will these be useful for the clinician if providing further care to the patient at a later date, or other clinicians taking over from the original record maker, but they should provide a complete explanation as to what took place and why, and, if that was competent and appropriate, a complete answer to later criticism, however that might arise.

More guidance as to what the records and notes should contain, and how to make them concisely and within the limited time available, is covered in Section 8 of the book referred to above.  An explanation of the many processes in which the clinician may be involved should there be criticism of past conduct is covered in Section 15.

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Whom to believe – clinician or patient?

Medico-legal Minder has written before on this theme, but a case last week in the High Court (CXB v North West Anglia NHS Foundation Trust) is another example of the importance of consistency of accounts (and memory) if you want a judge to treat your evidence as more likely to be true.  That is equally the case of written records as of oral evidence or witness statements.  The case of Hassell, on which I have written elsewhere[1] and in passing on this blog[2], was a strong example of the clinician’s evidence being rejected for inconsistency and the patient’s preferred.  Now we have an example of the patient’s evidence being rejected for inconsistency and the clinicians’ preferred.

A claim was brought on behalf of a twin damaged at birth.  It was agreed that if the mother had chosen an elective caesarean section, her choice would have been agreed by the clinicians and the injury to the baby would have been avoided. The mother gave evidence, supported by the father, her mother and sisters, that she had requested an elective caesarean section. However, none of the clinical notes made by doctors or midwives recorded any such request or related discussion. The judge needed to find a logical basis for finding one or other of these versions of events more likely to be correct.

The judge found that the evidence on behalf of the claimant was given honestly and that the witnesses believed what they said.  However, he found that their evidence was not externally or internally consistent. The mother and father had both changed their accounts in two material ways. The mother said in her witness statement that she had told doctors and midwives that she would like to have a caesarean section, and that that was always her view, while in cross-examination she said she wanted a caesarean section if the baby’s head was in a downward position, and only made up her mind about a caesarean section later. The father said in his witness statement that the mother wanted a caesarean section if the baby was in a non-standard position, but in cross-examination said the mother had not stated her view. The mother also recalled in cross-examination a meeting with a midwife that she had omitted from her witness statement, which undermined the credibility of her account.

The judge noted that there were no contemporaneous records supporting the mother’s account, and therefore in order to accept the parents’ account the court would have to accept that the senior registrar had lied in several respects. The judge found that the registrar was an honest witness and, importantly, that there was consistency between her witness statement and her oral evidence and the evidence of the midwives. As a consequence, he could not find that the clinical records were inaccurate or unreliable.  Therefore the child’s claim failed.

It is however interesting to note what the judge made of the NHS Trust’s argument, relying on a previous court decision, that the court should prefer the reliability and veracity of written records over witness statements and oral testimony, because the court should base factual findings on inferences drawn from documentary evidence rather than rely on witnesses’ recollections.  In CXB he regarded this as no more than a reminder to judges that caution had to be taken in making their assessment as to which evidence to prefer, and that full and proper reasons had to be given.

Learning points:

In a clinical negligence case there is no general principle that the judge should prefer the reliability of clinical notes over witness statements and oral evidence because of the unreliability of a witness’s recollection of events. It is important that the clinical notes are full, clear and unambiguous, and consistent with all other evidence, oral or documentary, from the medical team.  Failure to make such notes and records is inexcusable – ways of doing so, even where time is short, must be devised.

Finally, despite the title of this article, it is not really a matter of who to believe, but whose evidence is the more likely to be accurate, applying the balance of probabilities to the evidence available to the court.

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[1] Clinical Practice and the Law – a legal primer for clinicians  (see section 2.8 and section 6 (records and note making)) and see also in JTO