Factual Disputes in Medical Negligence Claims
It is not uncommon for factual disputes to arise in medical negligence claims where a claimant’s recollection of events differs from what is recorded in the clinical records.
At the start of a medical negligence claim the records will usually be requested. These records can be helpful but on occasions claimants will advise that vital information has not been recorded or the information is incorrect. There can be several reasons for this including time pressures leading to brief entries or records being written in retrospect.
In cases where the clinical records do not help in resolving the dispute it can often be for the Court to decide which evidence is preferred.
Summary of Freeman v Pennine Acute Hospitals [2021] EWHC (QB)
A recent example of this is the above case, which was brought by the parents of, Callum who sadly passed away at the age of 12. Callum suffered a severe brain injury during his birth following placental abruption.
On the morning of his birth Callum’s mum had suffered with sudden and intense abdominal pain and her partner had contacted the Hospital to seek advice. They were told that she should rest and take paracetamol. The pain persisted and Callum was subsequently delivered by an emergency caesarean section.
The Hospital Trust denied that this phone call ever took place and there was no record of it.
As part of the clinical negligence claim it was agreed that if this phone call had been made advice should have been given to attend Hospital immediately. Callum would have been delivered sooner and avoided the severe brain damage.
The Judge accepted the evidence of Callum’s parents and awarded compensation. In reaching this decision the Judge considered various cases which had explored the weight to be attached to witness evidence over the clinical records.
How a Court determines a dispute of fact
The Court will usually place great reliance on the clinical records as they are prepared at the time of the negligence and before a claim begins. These are generally considered to be accurate, but they still require scrutiny to ensure they can be relied upon. The records must always be assessed alongside all the other evidence, including from the witnesses.
Where records are missing it may be appropriate to draw inferences depending upon the facts of the particular case and all of the other evidence.
The Court will usually treat the evidence of witnesses cautiously as when recalling events, a number of years later memories can fade and biases set in. Additionally, witnesses can rely on their usual practice rather than their actual memory.
Summary
The approach of the Court shows that difficulties can arise when a claimant disputes the accuracy of the clinical records. However, the recent case outlined above does show that the contents of the clinical records aren’t the only determining factor.
When these issues arise in medical negligence claims it is important to compile as much supportive evidence as possible. This can include carefully assessing the full clinical records for corroborating evidence as well as mobile phone data or text messages. The more evidence that a claimant can provide to contradict the records, the more likely it is that a Court will accept their evidence.
Errors in Clinical Records
If a patient notes errors in their clinical records they should write to their GP or the Hospital to highlight these providing any supporting evidence. Clinical records cannot usually be amended but a note can be added explaining the inaccuracy.
Moving forward missing or inaccurate clinical records may be identified sooner with the NHS taking steps towards patients being able to access their records online. As of April 2022, patients with the NHS app will be able to read new entries within their records. It may therefore be possible for errors to be rectified immediately.
Medical Negligence Solicitors
Morrish Solicitors have extensive experience in dealing with clinical negligence claims including those involving factual disputes. If you believe you have a medical negligence claim please contact our specialist team of solicitors on 033 3344 9600 or email [email protected].
Our team of medical negligence specialists will be happy to discuss your options in detail.
