Medical records in clinical negligence claims a help or hindrance?

Reviewing some medical records in a potential claim I came across a series of clinical records which had been crossed out, times changed and  signatures or initials obliterated.  It was impossible to work out what had happened during the period in question and were it not for the nursing records it would have been difficult to prepare a chronology which was in any way accurate.  As it transpired these records may not be vital which is fortunate, but nevertheless it is worrying that such poor record keeping still occurs.

This year alone there have been two reported cases where record keeping has been highlighted as an issue. Earlier in the year FE v St George’s Hospital NHS Trust (an obstetric case with a brain damaged child) there was such a catalogue of disasters that it was hard to see how any view of the history of events could be determined. Indeed the judge, who listed a series of fundamental errors (including machines not working on the correct time and drugs not recorded), was of the view that the medical  records were wholly unreliable.  The claimant succeeded and must have been assisted by the difficulty in providing a  reliable chronology of events which could be supported by the records. It has to be assumed that both sides spent a considerable amount of time and money trying to interpret  what appears to have been a complete mess of record keeping.

Long v Western Sussex Hospitals was a case with a different problem. Part of the issue was a junior doctor making a decision to discharge when he should not have done so. The argument for the junior was that it was his usual practice that  a senior colleague would be consulted  before discharge occurred.  There was no evidence of this in the records .  As the judge pointed out  – It was “hard to accept that if he considered it important to consult ….with a senior colleague he would not have thought it equally important to  note the discussion in the notes”. The judge determined that no such consultation had taken place.

The problems of medical records are ones which present difficulties for claimant and defendant lawyers alike. They present even more difficulties for those who are not accustomed to reading and interpreting medical records such as the majority of patients.  Computerised notes such as those common in major hospitals and GP surgeries are considerably more accessible  and legible.

The health secretary Jeremy Hunt has made no secret of his desire for a digital NHS in which patients can access services and records on line. possibly reducing the need for attendances.  An idea that the NHS should be paperless by 2020 has (probably sensibly) been discarded but the desire to increase the accessibility of information is being given emphasis.

Computerised records still present challenges.  In a recent case, I dealt with, the notes of the nursing and different medical teams seemed to suggest versions of events which made no logical sense. Computer entries  seemed to contradict each other with blood pressure levels recorded at almost opposite ends of the scale.  However at least what records are there can be read.  Computerised records can still be silent about whether an activity has taken place (as in Long above) and a decision made about whether records are accurate. When entries are put into the system the timing can be checked which may be helpful but unlike handwritten records where alterations are usually obvious, material added to computerised entries can be less obvious.

With a change to computerisation, the challenges of interpreting medical records may remain, but the records themselves would be more accessible to lay individuals as well as lawyers.  This is not a panacea however. Computerised records do not solve the problem of chaotic care or failing to act appropriately.  However, they may make disputes about what the records actually mean and what they say much less time-consuming and costly.  That has to be an improvement for everyone – the NHS, medics, lawyers and most of all the patients.

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