More expensive problems with medical record keeping

The inadequacy of medical record keeping is again in the legal headlines.  In Shaw v Stead [2019] EWHC 520 the issue for the judge was whether the patient’s red flags symptoms for possible cauda equina were missed by the out of hours GP.  The patient had been kicked in the back while crouching by a 5 year old pupil.  The patient and her husband had different recollections of the appointment to the GP, who could not remember the examination and had to rely on his notes.

It was not in contention that the red flags would have been:

  • any change in saddle sensation;
  • any change in bladder or bowel function;
  • severe or progressive loss of power in the lower limbs; and
  • bilateral leg pain and/or sensory disturbance.

The patient asserted that she had attended the appointment in a wheelchair, she told the nurse she had been unable to pass urine but had wet herself subsequently, that her legs felt like ‘Bambi’ and that the examination was brief.  The GP said that it was his usual practice to ask patients with low back pain questions to exclude red flag symptoms suggesting possible cauda equina syndrome. This would include asking about problems passing urine and questions such as whether the patient felt her legs would not take her weight, or whether pain was restricting her walking.

The GP’s note read “no red flags, tender lower back especially left sacro iliac area. Unable to perform straight leg raise either leg reflexes equal and normal. Sensation normal”.   This meant, he asserted, that he would have asked questions about each of the red flag symptoms and that there was nothing in the history given by the patient to require referral. The GP experts in the case accepted that a reasonable GP might use this as shorthand rather than noting the response to each red flag question.

The record of “sensation normal” meant, he said, that he had checked the sensation in both legs by running a finger along the claimant’s bare skin. She recalled keeping her pyjama bottoms on at all times.

He also noted his record “call back if no improvement” and asserted that he would specifically have advised about red flags to look out for and told the patient to seek further medical advice if any emerged.

Although there was no note that the patient attended in a wheelchair, the GP said it would have been his usual practice to record a wheelchair, but nonetheless accepted that that might well have been the case, although at earlier stages in the proceedings it had been denied.  This inconsistency did not assist the GP’s case.

The judge accepted the patient’s account of the urinary accident and her ‘Bambi’ legs (which were supported by her husband), and found that straight leg raising was probably prevented by pain.  The GP had no recollection of how the SLR assessment was made.

The judge’s conclusion was that the patient did have “red flags” necessitating a referral at the time of the GP’s examination and therefore that the GP’s record could not be relied upon.  The GP was found to be in breach of duty to the patient.  The judge was not called upon at this stage to address the issue of the damage resulting from the delay in referral that this caused.

This case is another clear illustration of the importance of making complete records of examinations so as to be able to explain what occurred at the examination if some years later the events are the focus of investigation.  It may not be negligent to fail to do so, but the consequences are nonetheless clear and potentially serious.  Relying on ‘standard’ or ‘usual practice’ is insufficient.  In this case the records should have contained a brief note of:

  • The patient’s presentation (eg walking, using a stick, in a wheelchair, apparently in pain)
  • The history taken and any unusual and relevant events or their absence (eg urinary retention or incontinence or the absence of both)
  • In relation to the relevant red flags, a brief indication of the questions asked and answers given (eg no urinary retention/incontinence, weakness in legs, how SLR finding was made)
  • In relation to the examination, how it was carried out (eg sensation tested on low back through thin garment).

Finally to say “usual advice given” or “call back if no improvement” is not the same as stating “advised to call if

  • any change in saddle sensation;
  • any change in bladder or bowel function;
  • severe or progressive loss of power in the lower limbs; and
  • bilateral leg pain and/or sensory disturbance”

or recording that an advisory sheet was given containing that information.

Medico-legal Minder addresses how to make complete, concise and yet practical (and quick) records and notes in chapter 8 of his latest book.

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Negligent doctor liable only for losses within the doctor’s “scope of duty”

Medico-legal Minder previously reported on the decision of a judge to award against a doctor, who wrongly reassured a mother who wished to establish if she carried the haemophilia gene, damages in relation to the cost of bringing up a child with haemophilia and autism.  The Court of Appeal has considered the case (Khan v MNX [2018] EWCA Civ 2609) and has ruled that the judge’s decision was wrong.

The purpose of the mother’s consultation with the doctor was to enable her to make an informed decision in respect of any child she conceived who was subsequently found to be carrying the haemophilia gene.  The doctor was liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and consequent upon it no termination of the pregnancy.  However the mother took the risks of all other potential difficulties of the pregnancy and birth.  The doctor had no duty to prevent the child’s birth and the risks of a child being born with autism was not increased by the doctor’s advice.

In legal terms, the Court of Appeal ruled that the judge had failed to apply the “scope of duty” test set out in South Australia Asset Management Corp v York Montague Ltd [1997] AC 191 but instead had applied the “but for” causation test.  The South Australia case required there to be an adequate link between the breach of duty (the negligent advice) and the particular type of loss claimed, and laid down a 3-stage test: (i) what was the purpose of the advice which was negligently provided? (ii) what is the appropriate apportionment of risk? and (iii) what losses would have been sustained if the correct information had been given?  At the first stage, the purpose was to put the mother in a position to enable her to make an informed decision in respect of any child she conceived who was subsequently found to carry the haemophilia gene.  At the second stage, the doctor was liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and consequent upon it no termination of the pregnancy.  At the third stage, the loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism, which risk was not increased by the doctor’s advice.

A number of rules limit or define the damages which may be recovered where there is a breach of duty.  This case illustrated (so the Court of Appeal found) the link that there must be between the scope of the duty and the damage sustained (which here limited damages to the issue of haemophilia) whereas the trial judge had, wrongly on the facts of the case, applied the “but for” causation test in awarding damages for the additional costs of an autistic child which costs would not have been incurred “but for” the breach of duty as a result of which the pregnancy had not been terminated.

In Chester v Afshar the misfortune which befell the claimant was the very misfortune that the defendant had a duty to warn against prior to surgery.  The claimant recovered damages for that event arising.  That was not, however, the case here.  In Southern Australia there was discussion of the contrasting facts of the ‘mountaineer’s knee’.  A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering (such as from an avalanche) but has nothing to do with his knee.

The facts of Khan v MNX are more akin to the ‘mountaineer’s knee’ than to the failure to warn of a risk of surgery which in fact occurs.

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