In the matter of Bajraktari v Barts Health NHS Trust (2016) the Court provided further emphasis on the veracity of medical records in a clinical negligence case. Mr Justice Patterson handed down the Judgment on 18th March 2016 where the Court had to determine the preliminary issue on the question of liability and this case again reinforces the importance of detailed contemporaneous notes.
The Claimant had been born by emergency caesarean section but he was in a poor condition and had unfortunately suffered brain damage. The issue on medical causation had previously been agreed, but a determination on the factual causation issues was required.
The factual evidence provided was that after midnight on 31st October 2008 the baby’s mother (M), who was two days past her delivery date, had woken up in pain and found blood in her underwear. She contacted the labour ward and claimed she was told by the midwife that the bleeding was normal because she was overdue and the blood was likely to simply be a ‘show’. M was reassured and advised she call back when the contractions were closer together. During this telephone call, the Claimant was adamant that she had not been advised to go to hospital and she did not have any urgency to go because of the midwife’s reassurance.
At 4:40am that same night, the Claimant’s contractions were closer together. She called the hospital for the second time. During the second telephone call M was advised to come in if she was worried. M was not alarmed as she could still feel the baby moving. The Claimant arrived at Hospital around 6:30am, she underwent an emergency caesarean section and baby was born at 7:04am. Baby had suffered brain damage as a result of placental abruption.
As is commonplace, the midwife had no real recollection of previous events and her account was governed by what had been written in the medical records. The notes recorded that the Midwife had advised M to come to hospital during their first discussion. The midwife explained that as it was the Claimant’s second pregnancy, she would have advised her to come in because delivery was likely to be quick and if she had been told of vaginal bleeding, she would have told that patient to go to hospital.
The midwife who gave evidence was very experienced, and had been in practice for 28 years. She understood and knew the importance of keeping accurate records. In contrast, M submitted that the advice section of the record had been completed at a later date and was not a contemporaneous note. However, the Judge could find no evidence that the advisory section of the records had been updated after M’s second call to the midwife. M explained to the judge that she has been reassured by the midwife and therefore had no urgency to take herself to hospital. There was therefore a critical delay before the ambulance was called.
Mr Justice Patterson handed down the recent judgment showing that in this circumstance, the Court preferred what was written in the records over the Claimant’s own version of events. The Judge identified that given those findings of fact, the advice given at the time of the first telephone call had been reasonable and competent and there was therefore no breach of duty on the Defendant’s Trust’s part.
This decision again shows the importance of clinicians keeping detailed records in every situation to ensure they can be relied upon to provide an accurate account of the care and advice given. In this case, the medical records made at the time were the deciding factor, notwithstanding that the midwife could not recall the specific discussions due to the lapse of over 7 years between the index event and the trial. All healthcare providers can use this case as a reminder to staff of the vital importance of detailed contemporaneous records.