Medical negligence – record keeping under the microscope

On 18 March 2016, Mrs Justice McGowan gave her judgment in the case of FE v St George’s University Hospitals NHS Trust [2016] EWHC 553 QB  heard over 5 days on liability and causation only between 23 – 27 November 2015.

In the specialist legal area of clinical negligence we are used to receiving clinical notes which are inadequately recorded, sometimes illegible and often incomplete or contradictory. Much to the dismay of our clients, this is not necessarily enough to establish a breach of duty. However, Mrs Justice McGowan in FE made clear that in determining issues in a case, judges will view poor record keeping in a very negative light.

The Claimant was born at 03.16 on 25 January 2001. It is agreed that he suffered a period of acute hypoxic-ischemic insult at the end of labour which led to neurological damage. It is also agreed that if he had been born at or before 03.11 he would not have suffered such damage. The Claimant was seeking to prove that the delay was negligent, and that caused his neurological damage. The Claimant was successful.

The judge stated as follows –

“Notwithstanding the pressures of a busy labour ward, the system of communication and the response to messages sent between the teams was inadequate and failed to ensure that a reasonable standard of care was provided to FE and his mother in the period before his birth. In the result… the Claimant’s claim succeeds.”

The judge went on to say –

“It is an unsatisfactory feature of this case that the recording of events was generally unreliable.”

While the poor record keeping in question was not the only reason the Claimant’s claim was successful, it is clear from reviewing the judgment that it played a significant part in the overall evidence which was given at trial. Mrs Justice McGowan was critical of the standard of record keeping displayed by the Defendant and it is clear that the state of the medical records had an impact on the perception of the Defendant’s witnesses.

The CTG machine monitoring FE’s heart rate was running on the wrong time during the labour. While it might have been possible to manually correct this as the paper fed out from the machine, that was not done. Some names of medical personnel were not recorded properly and theatre notes were altered by overwriting without authorisation. The judge also found that some important events, if they occurred, have not been recorded at all.

It was, the judge acknowledged, an extremely busy night shift which had a number of patients who required care beyond the routine of a ‘normal’ delivery but she said, that was no excuse for the record keeping which was termed “shambolic” and “appalling”.

To avoid future instances of unsatisfactory record keeping, the judge gave the following guidance –

“a) All notes should have been acknowledged by signature or initial at the very least.

b) Theatre records should not have been altered without acknowledgment.

c) There should have been a method by which notes could be matched to the timing of an event on the CTC trace.

d) If a time recording device is capable of going wrong then there should have been an adequate means of regular checks.

e) It is unacceptable that the administration of oxytocin is not properly recorded; the doctors should not be working on the presumption that it had been stopped simply because they would have expected it to be stopped.”

There were several factors beyond the state of the clinical records which resulted in the Claimant winning this case but the judge’s decision to put focus on the poor record keeping is a welcome step. Better recording makes cases easier to investigate and avoids patients suffering unnecessary anxiety on top of the distress suffered when something goes wrong.

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