Robert Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283

It is perhaps too obvious to need stating that a document which appears to be contemporaneous is not automatically reliable. It is still for the court to decide how much weight to attach to it. At first instance an apparently contemporaneous set of clinical notes were dismissed as being inaccurate. On appeal, it was held that the judge must test the reliability of the documents by reference to witness evidence. Having made that comparison, the judge was entitled to find that the records were unreliable.

The claimant underwent abdominal surgery for a parastomal hernia. On the day he was due to be discharged, he was seen by Dr Zafar. Though he complained of pain, feeling sick and that his stoma was dark in colour, he was sent home. The pain increased while the patient was recovering at home. He eventually attended A&E and was referred to a consultant surgeon. He underwent an operation to remove the stoma the same day.

Dr Zafar was found to have breached his duty to the claimant. Had he not been discharged, the required surgery would have been less drastic. The Trust appealed. They contested the trial judge’s finding that the contemporaneous clinical records were to be rejected in favour of the testimony from the claimant and his wife.

There was a clear disparity between the claimant’s recollection of events on the morning of his discharge, and the clinical records. The notes were made by a doctor who was not called to give evidence. The notes stated:

WR Zafar

Post parastomal hernia repair

Pt well

Stoma (normal colour)

Home

This contrasted greatly with the claimant’s contention that he was in pain and that the stoma was dark in colour. It also contrasted with the notes from the ward round the previous evening.

The judge assessed the claimant’s evidence in light of the apparently contemporaneous clinical record. This assessment was made all the more difficult as there was no evidence of the circumstances in which the record had been made. On appeal, this was held to be the correct approach.

The trial judge had made his decision following a fact-finding process conducted in accordance with authority. The claimant’s recollection and the clinical note could not both be accurate. It was for the judge to decide which to prefer, and there was ample evidence to support the claimant’s account.

Accurate, contemporaneous records are an essential for all practitioners. But although contemporaneous records are normally decisive, they cannot be taken in isolation. A key feature in this case was the lack of evidence as to the note being made. The doctor who made the notes did not give evidence. Dr Zafar, understandably, did not remember the morning in question. It is therefore hardly surprising that the judge found as he did.