Category: Guidance

More expensive problems with medical record keeping

geyre

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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Important lessons for the expert witness from a recent case concerning bowel surgery

geyre

The recent case of Saunders v Central Manchester University Hospitals NHS Foundation was a claim for alleged clinical negligence resulting in ischaemic necrosis of the large bowel during surgery for reversal of an ileostomy. The issue was whether the damage to the blood supply to the bowel was the result of surgery or a naturally occurring blood clot.  Neither a spontaneous thrombotic event nor damage by excessive traction or torsion to the superior mesenteric artery during surgery had been described in the medical literature.

So far as the evidence of the two expert witnesses was concerned, the judge described one as ‘robust but at times [he] appeared unwilling to reflect on alternative viewpoints’, and the other as ‘more reflective but [he] was sometimes a little vague’.  The judge went on: ‘Neither approach was particularly unusual.  Each had its advantages and disadvantages.’ (para 33)

The joint statement was significantly criticised (paras 34 and 35).  It is worth recalling the purpose of the joint statement –

‘…following a discussion between the experts they must prepare a statement for the court setting out those issues on which –

(a) they agree; and

(b) they disagree, with a summary of their reasons for disagreeing.’ (CPR 35.12(3))

In this case the joint statement ran to 60 pages and failed ‘to agree and narrow issues’ (PD35 9.2) but, the judge found, ‘served only to confuse rather than assist’.  The problem was compounded by their being 2 agendas, as the parties’ lawyers had been unable to agree one consolidated agenda.  The judge pointed out:

‘The joint statement is an important document.  It ought to be possible to read it and to understand the key issues and each expert’s position on those issues … Frankly, the approach to the joint statement in this case achieved nothing of value.’

The case failed because the claimant’s expert had not, to the judge’s satisfaction, offered a clear explanation of the likely mechanism of surgical injury, although he offered a number of possibilities.  His evidence was ‘somewhat vague and shifting.  He admitted he was starting from the position that something must have happened.  He offered various possible explanations, but it was clear he found the mechanism difficult to explain.  He settled on the likely cause being excessive traction … he still found it very difficult to say what [the surgeon] was likely to have done wrong’ (para 81).  There were factors pointing ‘both ways’ so that the judge concluded that she ‘was not able to conclusively exclude the possibility of either of these rare events by reference to the expert evidence alone.’  However the surgeon’s evidence was accepted that nothing unusual happened in the operation and that this was an entirely straightforward procedure.  Therefore the judge was not satisfied on the balance of probabilities that the injury resulted from surgical damage, and the claim failed.

A further problem for the claimant was that his expert suggested that the damage may have occurred because the claimant’s anatomy was such that it was particularly easy for damage to be done. That being so then the question would arise as to how in those circumstances causing such damage was evidence that the standard of care of the surgeon fell below that to be expected of a reasonably competent surgeon (‘Bolam’).

This case is an important reminder that:

  1. The way in which an expert gives evidence in court is important to, and will be assessed by, the judge.
  2. The joint statement should be a concise and useful document written to assist the judge in narrowing the issues and summarising the reasons for disagreement. To provide that is part of the expert’s duty to the court – ‘It is the duty of experts to help the court on matters within their expertise’ (CPR 35.3(1)) – as well as a requirement of the Rule and Practice Direction in relation to joint statements.
  3. Experts must be able to provide a clear, logical and convincing explanation of how their conclusion or opinion is reached, and therefore why it is the correct opinion. This is particularly so for the claimant’s expert because of the burden of proving the claim.
  4. In providing a conclusion or opinion, the expert must keep well in mind the appropriate legal test, in this case the Bolam test.

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