Clinical negligence defendants must keep records in good order or risk losing

As a clinical negligence lawyer I am familiar with the nightmare that medical records can present. Rarely do they arrive in one complete set, copied appropriately and legible.  Often it can take several attempts before a nearly complete set is  available and useable. Some NHS trusts are better than others but ultimately it is the responsibility of the trusts to maintain and allow access to proper records.

The importance of maintaining documents can often be overlooked in proceedings.  However a failure to maintain can  damage a case or a defence.

In the recent case of  RE v Calderdale & Huddersfield Foundation Trust EWHC 824  there were numerous irregularities in the evidence presented by the trust.  The witness evidence was conflicting  to such a degree it wasn’t  accepted by the court.  However, by far one of the more important issues of the case was the apparent alteration of records and destruction of the pertinent ones.

In accordance with usual practice and the court rules, cop medical records were provided. These were not complete and it became apparent that the originals had  then been destroyed after being “digitalised”.

There was a considerable confusion over what had happened to the records in this case. The trust destroyed the records after the claim began and the claimant then had to rely on the digitalised records which were unsatisfactory. The legal services manager provided a statement which did not accurately record events and appears not to have ensured that the records were returned safely to the department after the digitalisation process had been completed. There was however  no  finding of deliberate destruction  in the case.

The end result, however was that the accuracy of the records which did exist couldn’t be guaranteed. The copies of some were poor and  there were differences between the copies of original records that had been provided  and the digitalised versions.  Some records appear to have been over-written which is not necessarily sinister but when the original records were not available there was no mechanism to examine how and why this had occurred.

The claimant’s solicitor conscious of the problems had put the trust on notice that they had to prove the records as contrary to general assumptions they are not automatically  admissible  as  beyond doubt contemporaneous records. In addition the claimant argued that where the records were uncertain, ambiguous or just plain inconsistent, the court ought to resolve any dispute in the claimant’s failure.

The court determined that this was the correct way to deal with these issues.  Ultimately the claimant was successful in the claim and the  problems of the defendant’s evidence – both witness and documentary – clearly had a significant  impact on that decision.

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