Investigating a clinical negligence claim is not always an easy job. One of the first steps that we have to take is obtaining a claimant’s medical records. This in itself can be quite an onerous task, as many patients have considerable medical records in a number of different places, for example at their GP’s surgery and in different hospitals, and the records are not centrally co-ordinated. This means it can often take many weeks to obtain all of the records, and sometimes months.
Even once we have obtained them, they often arrive in a disordered mess, unrepresentative of how they are in hospital, and have to be properly sorted. This is not only to set them out into a manageable and relatively comprehendible form, but also to identify records that are missing, and there frequently are, often significant, records missing.
And this can be a problem.
I have had many cases over the years where analysis of the case and those medical records which we have managed to obtain has identified a particular record as being critical to the case – but it is missing.
This can be a page of a clinical doctor’s note on which is recorded the doctor’s history-taking or examination. Such a note may demonstrate that the doctor did not document that he/she had asked the relevant questions of the patient, which is a basic skill doctors are taught from medical school onwards. It may also demonstrate that they did not record a particular part of the examination: another (generally harder) skill taught from early on. Whilst neither of these pieces of paper necessarily means that the doctor failed to take a proper history or perform a proper examination, they can assist the claimant as they can be persuasive evidence that the history-taking or examination were unacceptable given that the relevant aspect was not recorded. Absence of that key sheet of paper will deprive the claimant of knowing what was or was not documented and may weaken the case.
Investigation results are a common problem too. Missing blood results, for example. These should be less of a problem nowadays, since pretty much all pathology investigations are now logged onto the hospital’s computer system. However, sometimes bloods taken in A&E, ITU or one or two other departments may not necessarily make it on to the computer system. This is especially true of tests such as arterial blood gas results, which the gas machine prints out and the print out is then supposed to be fixed into the records. Unfortunately, that does not always happen, and they are lost at a later date presumably when they fall out of the file.
The same applies to radiology. Again, nowadays most x-rays, CT and MRI scans, etc. are logged on the computer system and should be readily available for disclosure by the Trust. This was not always the case: I have had a number of different cases over the years which respectively turned on a missing CT scan, a missing MRI scan, a missing chest x-ray, amongst others. None of these films ever turned up during the litigation, so both parties were dependent upon the official report and what had been documented in the notes, which is less than ideal because the experts cannot review the originals.
Other test results which are not logged onto the computer system include tests such as ECGs, ultrasounds, echocardiograms, etc. The former are often missing, as they are a single sheet of paper that can easily fall out of a set of notes if not securely fixed. The latter are dynamic investigations and they often do not produce a full recording of the images – sometimes one or some stills may be included, but sometimes nothing is recorded bar the official report without any pictures, leaving only the report available to be relied upon. In this latter situation, it is not so much about tests being lost or misplaced, but rather it is about the tests not being recorded in the first place.
Operating notes will sometimes have disappeared, too, including the actual operation note, especially if it is handwritten rather than typed, and anaesthetic notes, most importantly the intra-operative anaesthetic chart, can also go walkabout for no discernible reason. I did once have a case in which the operation note recorded that there had been three perfectly reasonable attempts at inserting some forceps into a particular part of the brain and that the resulting bleed was just an unfortunate adverse effect. Eventually, after many years, I managed to obtain the video-recording of the operation. This showed that there had in fact been nine attempts, not three; and, if that was not bad enough, the attempts were in the wrong anatomical location. In that case, the video of the surgery was very much the “smoking gun” and the case settled.
ITU and A&E notes are problematic because they are often not added to the patient’s main hospital notes when the patient is discharged, and so separate searches will need to be made to find them and it is worth being persistent with the Trust. The “large” ITU charts are a particular problem as they are often kept separately on ITU. Sexual health clinic notes are the same, as they are nearly always (if not always) kept separate from the patient’s main hospital notes. Nursing notes can sometimes be very helpful to a clinical negligence case and in my experience they do not tend to be absent from a set of records quite as much as clinical and investigation results.
Finally, internal adverse event investigations, serious incident reports, root cause analysis reports, comprehensive internal inquiries – they have a number of different names – are also potentially hugely important and need to be disclosed. Trusts are usually not difficult about disclosing the final report but they are often less forthcoming when it comes to disclosing documents generated during the investigation process, such as witness statements, emails, memoranda, etc. Therefore, these types of document need to be asked for specifically and there should be no let-up in chasing them down.
There are lots of other different types of record, too multitudinous to mention now.
The above are just some of many examples I have encountered in my clinical negligence practice over the last 20 or so years and almost every set of records I receive is missing something, but it is not always relevant or pertinent to the issues in the case. However, it is critical to establish whether a record that is relevant is missing and to pursue the finding and disclosure of it vigorously, including with pre-action disclosure or specific disclosure proceedings when necessary. It is important to know what the Trust has done to find the document, what searches, where, when, by whom, etc.
So, finding a key piece of information can turn a case: it is therefore important to push hard for it and, just occasionally, it will magically appear, much as that video eventually did in my neurosurgical case referred to above. Make a nuisance of yourself, be a terrier, do not be easily brushed aside and do not give up until you are satisfied that it really is no longer in existence, anywhere