The endless saga of medical records

Any clinical negligence practitioner will know the difficulty in dealing with medical records.  These documents form by far the most important evidence in a claim. Where it is advantageous to them, defendants have certainly argued that they should be the definitive evidence.

There have been many cases in which the defendants have argued that the weight of evidence should be firmly in favour of the medical records. However, there have been other cases where defendants have argued that even where the medical records appear to be silent, the evidence of the medic concerned as to his or her usual practice should be sufficient to establish a defence.  In short, it is argued that, though there is no evidence that something has been done, it will have been done.

The reality is that medical records present both sides with difficulties depending on their quality, availability, thoroughness and informative value.  As a practitioner I am still receiving medical records which are woefully incomplete and still having to make applications to court for the disclosure of some missing records.

But what is the actual evidential value of the medical record in a claim?

There have been various issues in relation to this, but perhaps the most commonly quoted case is that of Denton Hall Legal Services v Fifield in 2006. In this case medical records were classified as hearsay evidence under section 1(1) of the Civil Evidence Act 1995.  This means that they are evidence of what was recorded, rather than evidence of what actually occurred and the person who wrote them does not need to give evidence to prove that this is what they recorded.

Although courts tended to and still have a tendency to place enormous weight upon the evidence in the medical records, they are not fact. They are someone’s account of what has happened.

In a recent case the issue of the value of the medical records and their inclusion in bundles for trial came again to the fore. This was the case of Calderdale & Huddersfield NHS Foundation Trust v Atwal.

This was an unusual application before the judge. The NHS was seeking to make the former claimant liable for contempt of court proceedings. It was alleged that he had pursued a fraudulent claim for compensation, claiming over £800,000 when settlement a couple of months before trial was for in the region of £30,000. There is clearly no doubt there was a substantial difference between the two figures.

There were substantial differences between the claimant’s account and the medical records. The Trust wanted to highlight the inconsistencies and this formed an important part of their case. The court therefore had to consider what the evidential status of the medical records were because it was clear that the Trust was relying on this evidence to establish that the initial claim was fraudulent.

One of the rules however of hearsay evidence is that a solicitor needs to give notice that they are seeking to use in it court. That notice is usually given many months before a trial. So there was an issue as to the admissibility of the records as no such notice had been given. The original claim had settled albeit chaotically just before trial .

However the court confirmed if medical notes form part of an agreed bundle for a hearing, the documents are admissible at that hearing as evidence of their contents under paragraphs 27.1 and 27.2 of Practice Direction 32 (Evidence),

In any event hearsay evidence of its own is not necessarily excluded simply because notice wasn’t given at the appropriate time. The court can decide to include it.

However of more importance was the  difference between the claimant’s account and the medical records.

In this particular case the judge held that caution should be exercised in this case in relying upon the medical records to prove that what the defendant told the medical staff was true, as opposed to relying on it to prove the defendant made the statement in question. Clearly there were inconsistencies in the medical records and the individual had reported different things to different clinicians.  The trust has not sought statements from the various clinicians. The court did not consider this course of action unreasonable as the cost would be significant.

The judge considered that the evidence was nevertheless fairly unambiguous and unlikely to have been misunderstood. The evidence in the medical records was also unlikely to have been invented.  Consequently, despite being hearsay, the medical records were afforded a weight which other hearsay evidence might not.

In a wider context there is often an inconsistency between medical records and the accounts provided by clients or indeed by experts. I routinely advise clients having listened to their account of events that the medical records may well say something completely different. This is often the case. Some of this is no fault of anyone’s because medical and nursing practitioners may emphasise different issues than that of the patient who has other areas of concern.  Often it is simply that concerns raised by a client have not been recorded. Medical records can be very poor when dealing with clients continually asking about procedures or risks involved in particular treatment.

This judgment however indicates that almost a good faith analysis should apply to medical practitioners. Doctors have not written the notes untruthfully; nurses have not invented medical records.

This case  actually reflects what most of us are aware of in practice. Judges are reluctant to look beyond medical records and challenges to this form of hearsay evidence are difficult.

The case itself also indicates perhaps a more aggressive attitude on the part of NHS Resolution in challenging claims.   Fraud is not usually an issue in clinical negligence. It is to be hoped that allegations of it do not appear often which will do much to damage the good working relationship between parties in this area of law to the detriment of all concerned and with an increase in costs for no good reason.

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