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Written on 29th July 2021 by Tara Pileggi-Byrne

We do not expect our clients to know every detail of their treatment when they come to us at the outset of a claim. In cases involving injuries arising from birth, it is rare for a mother to remember clearly the exact timings of her examinations or when the baby’s heart rate was checked.  In many types of medical negligence claim, medical treatment has taken place over several appointments or over the course of a hospital stay, which can make it difficult to remember exact dates and times.

Patients are not required by law to keep records of their medical treatment, but healthcare providers are.  One of the first things we do during the initial stages of a client’s clinical negligence claim is to gather evidence to prove what happened during our client’s treatment, including obtaining any relevant medical records. This is because one of the overarching principles of any clinical negligence claim is that the person bringing a claim (known as the claimant) must prove their case.

What happens if there are incomplete records?

Historically, if vital evidence was missing about key facts which prevented a claimant from proving their case, the claimant still had to prove those key facts and convince the court that the defendant (against whom they were claiming) was negligent based on what those key facts would have been. For example, if test results or observations were missing from the medical records, the claimant would need to prove in another way what those results or observations would have been. The court would  not imply from missing vital evidence that something had gone wrong.

This put the patient claimant at a great disadvantage in a clinical negligence claim where the clinicians at the defendant hospital had failed to make an accurate recording in the medical records or, in the case of a birth injury, where they had failed to produce clear records relating to the baby’s birth. The claimant would have to use other means to establish what happened, such as by considering the baby’s condition at birth, any radiological evidence (scans) showing a brain injury, and the parents’ recollections of what happened. Independent medical experts would be instructed by the claimant to comment on the evidence available and to provide an opinion on whether the treatment was negligent or not.

If the defendant’s experts could put forward other non-negligent causes of the baby’s condition which aligned with the inaccurate or incomplete medical records, the claimant would not have proven their case. This is because the claimant must prove on the balance of probabilities (that it was more likely than not) that their injury was caused by negligent treatment by the defendant.

A change in the court’s approach?

In recent years, there has been a shift away from the historical approach, as reflected in three court judgments: Keefe v. Isle of Man Steam Packet Co Ltd [2010], Raggett v Kings College Hospital [2016]  and JAH v Byrne [2018]. The judgment in Keefe stated that, ‘In such circumstances the court should judge a claimant’s evidence benevolently and the defendant's evidence critically.’  In other words, where the defendant is responsible for the lack of accurate evidence, the judge should be more critical of the defendant’s evidence than the claimant’s, giving the claimant more of the benefit of the doubt. This approach was repeated in the later judgments in the cases of Raggett and JAH.

Following this approach in a medical negligence claim would mean that if evidence is missing arising from the defendant’s (hospital or GP’s) negligent failure to record, retain, or produce accurate medical records or other evidence, the claimant (patient) has the benefit of the doubt as to what the evidence would have been. The good news for injured patient claimants is that the defendant hospital or doctor no longer benefits from their own poor record keeping or loss of medical evidence.

The importance of accurate record keeping

Sometimes our clients have concerns that their records have been deliberately altered. In our experience this is rare. Altering medical records to present a misleading account of what happened is a criminal offence and would have serious professional consequences for a clinician taking such actions.

However, mistaken or inaccurate or retrospective records are always a cause for concern. The General Medical Council (GMC) (which regulates doctors) and Nursing and Midwifery Council (NMC) (which regulates nurses and midwives) both highlight the importance of keeping accurate and clear records. Maternity safety reports by MBRRACE, HSIB and the RCOG’s Each Baby Counts programme have all  highlighted that where the healthcare team are too busy to keep accurate records whilst focussing on providing care in emergency situations, they should nominate a ‘scribe’ to write accurate contemporaneous records.

Our experience

At Boyes Turner, we are experienced at overcoming evidential difficulties arising from incomplete documentation or medical records in maternity or serious injury medical negligence cases.

In previous cerebral palsy cases we have been able to use other evidence to prove what the baby’s heart rate was likely to have been when recordings were not detailed in the medical records. We have also been able to overcome difficulties caused by the baby’s heart rate incorrectly being recorded in the records due to monitoring mix ups between the baby’s and mother’s heart rate.

It is not ideal to have incomplete records and we understand it can be frustrating for clients who can recall conversations or steps taken that have not been detailed in the records. However, we can often overcome the problem, particularly if the claimant’s or other witness’ recollections are clear and there is other supportive evidence. Clients can also help us avoid the problem of lost records by talking to us about their claim at an early stage and keeping any relevant records sent directly to them.

If you or your child have been seriously injured as a result of medical negligence and you would like to find out more about making a claim, you can talk to one of our specialist solicitors, free and confidentially, by contacting us here.