by Giles Eyre
The inadequacy of medical record keeping is again in the legal headlines. In Shaw v Stead1 the issue for the judge was whether the patient’s red flag symptoms for possible cauda equina were missed by the out-ofhours GP. The patient, while crouching, had been kicked in the back by a 5 year old pupil. The patient and her husband had different recollections of the appointment to the GP, who could not remember the examination and had to rely on his notes.
It was not in contention that the red flags would have been:
(a) any change in saddle sensation;
(b) any change in bladder or bowel function;
(c) severe or progressive loss of power in the lower limbs; and
(d) bilateral leg pain and/or sensory disturbance.
The patient asserted that she had attended the appointment in a wheelchair, that she told the nurse she had been unable to pass urine but had wet herself subsequently, that her legs felt like ‘Bambi’ and that the examination was brief. The GP said that it was his usual practice to ask patients with low back pain questions to exclude red flag symptoms suggesting possible cauda equina syndrome. This would include asking about problems passing urine and questions such as whether the patient felt her legs would not take her weight, or whether pain was restricting her walking.
The GP’s note read "no red flags, tender lower back especially left sacro iliac area. Unable to perform straight leg raise either leg reflexes equal and normal. Sensation normal.” This meant, he asserted, that he would have asked questions about each of the red flag symptoms and that there was nothing in the history given by the patient to require referral. The GP experts in the case accepted that a reasonable GP might use this as shorthand rather than noting the response to each red flag question.
The record of "sensation normal" meant, he said, that he had checked the sensation in both legs by running a finger along the claimant's bare skin. She recalled keeping her pyjama bottoms on at all times.
He also noted his record "call back if no improvement" and asserted that he would specifically have advised about red flags to look out for and told the patient to seek further medical advice if any emerged.
Although there was no note that the patient attended in a wheelchair, the GP said it would have been his usual practice to record a wheelchair, but nonetheless accepted that that might well have been the case, although at earlier stages in the proceedings he had denied it. This inconsistency did not assist the GP’s case.
The judge accepted the patient’s account of the urinary accident and her ‘Bambi’ legs (which were supported by her husband), and found that straight leg raising was probably prevented by pain. The GP had no recollection of how the SLR assessment was made.
The judge’s conclusion was that the patient did have “red flags” necessitating a referral at the time of the GP’s examination and therefore that the GP’s record could not be relied upon. The GP was found to be in breach of duty to the patient. The judge was not called upon at this stage to address the issue of the damage resulting from the delay in referral that this caused.
This case is another clear illustration of the importance of making complete records of examinations so as to be able to explain what occurred at the examination if some years later the events are the focus of investigation. It may not be negligent to fail to do so, but the consequences are nonetheless clear and potentially serious. Relying on ‘standard’ or ‘usual practice’ is insufficient. In this case the records should have contained a brief note of:
- The patient’s presentation (eg walking, using a stick, in a wheelchair, apparently in pain)
- The history taken and any unusual and relevant events or their absence (eg urinary retention or in continence or the absence of both)
- In relation to the relevant red flags, a brief indication of the questions asked and answers given (eg no urinary retention/incontinence, weakness in legs, how SLR finding was made)
- In relation to the examination, how it was carried out (eg sensation tested on low back through thin garment).
Finally to say “usual advice given” or “call back if no improvement” is not the same as stating “advised to call if
(a) any change in saddle sensation;
(b) any change in bladder or bowel function;
(c) severe or progressive loss of power in the lower limbs; and
(d) bilateral leg pain and/or sensory disturbance”
or recording that an advisory sheet was given containing that information.
Similar problems arose for the surgeon in Hassell v Hillingdon Hospitals NHS Foundation Trust2. A patient underwent a C5/6 decompression and disc replacement operation performed by a spinal orthopaedic surgeon. Unfortunately, she suffered a spinal cord injury during the operation which caused tetraparesis and rendered her permanently disabled. The patient asserted that the surgeon did not warn her that the operation might leave her paralysed and did not discuss other conservative treatments before the decision to have the operation was made, as he was required to do when consenting a patient following the decision in Montgomery3. The surgeon said that he had warned the patient about the risks of paralysis and also discussed other conservative treatment options. However, the patient’s claim succeeded on the basis of a failure to obtain informed consent and she recovered substantial damages.
The judge in this case decided, having heard the evidence of both the surgeon and the patient, that on the balance of probabilities the warning was not given and alternative treatments were not discussed. 7 different reasons were relied upon by the judge for coming to that conclusion, all of which indicated either weakness (or silence) in the records made by the surgeon in his dealings with the patient, or inconsistencies in the surgeon’s evidence, or both. The surgeon had not recorded any details of discussion of conservative treatment options. In relation to operation risks he relied on his ‘invariable practice’ to mention various complications but the judge found that what he said sometimes, and on the relevant occasion, differed from his ‘invariable’ practice. Warning of the risk of paralysis was not specifically noted and the judge concluded, on the facts, that that warning was likely to have been remembered by the patient particularly as she recalled a discussion about a much less serious potential complication. There were also inconsistencies in the surgeon’s recollection between the evidence given at different stages in the proceedings, and his accounts were not reflected in the contemporaneous records.
Discussion
A lawyer would not find these decisions and the approach of the judges to the evidence surprising. The absence of complete or thorough contemporaneous notes consistent with the evidence given at all later occasions by the clinician greatly undermines the clinician’s evidence, particularly if there is credible contrary evidence from the patient (or the patient’s family). Clinicians need at all stages of treatment of patients not only to communicate clearly, but to record the essentials of that communication, and material matters discussed, in a clear and reliable form at that time so as to be able to assert confidently at any later inquiry what that communication involved. Time has to be found in which to do this, but it need not take much time.
A checklist of matters to be raised with the patient during the consenting process must be prepared, and some simple and effective measure used to show that they were in fact raised. This may be no more than a list of key words followed by ticks or crosses, or an acronym to represent the key words similarly marked, but could be a printed or computer list of matters, again with suitable confirming marks. It is for the clinician to find a system that works for him or her, and which he or she can use accurately and quickly to record the essence of all material matters during a consultation or examination.
These lessons are equally important whether in relation to consenting or to recording decisions or diagnoses, and for the same reasons. If asked, in the course of any subsequent inquiry, to justify a decision made in the treatment of a patient, then the clinician will be well supported by a contemporaneous brief note of the material facts relied on, the decision made and the reasons for the decision. This will frequently provide convincing evidence as to why a complaint or a claim against the clinician will not succeed.
Giles Eyre
Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer for clinicians (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.uk.com), and regularly writes articles on these subjects.
References
1, [2019] EWHC 520
2, [2018] EWHC 164, http://www.bailii.org/ew/cases/EWHC/QB/2018/164.html
3, Montgomery v Lanarkshire Health Board [2015] SC 11
