As a clinical negligence lawyer, I always advise clients about the importance of medical records. The records rarely agree with the accounts provided by clients. This is not a criticism of those who are compiling the records or the clients. Inevitably they are coming from different perspectives.
Medical records are in fact supposedly hearsay evidence. That is – just evidence of what was written about the events, rather than direct evidence of the events themselves. There is no doubt however that the courts tend to place great weight on such evidence. This is firstly because records are usually contemporaneous and therefore whether we like it or not there is a certain assistance that can be provided by that. Secondly, they are generally prepared not with the idea of litigation in mind. Thirdly the evidence in medical records comes from a variety of sources and individuals, so together perhaps has more weight.
Nevertheless, regardless of whether it is deemed to be hearsay or not, your average judge places a huge amount of weight on the medical records as they are and medical records which are not complete or do not provide the same picture of the claimant can often essentially torpedo a case.
The increasing reliance on medical records is somewhat of a concern. When medical records were written by hand or in detail, then they perhaps some validity. However increasingly medical records are pro forma tick box protocols which do not encourage staff to think around issues and problems. Checklists are excellent reminders of what needs to be done but can also encourage staff not to think about what is happening.
In a recent case I dealt with, the proforma nursing records indicated all was well. Indeed you would have thought it was a hotel. Which came as a surprise to the client who (along with family and friends) experienced serious infections, delayed medication, poor nursing care and a dirty ward. The trust records which were sent to their experts presented just one picture, which was a rosy little number where the only problems appeared to be a recognised complication of the surgery.
That is the problem with medical records. They present only one view and the more they become standardised boxes, the less information they actually provide.
The denial from the trust was strong and based on evidence of the medical records.
It was only when the witness evidence was sent through that the hospital’s experts had a chance to see the reality of the understaffed and badly managed ward. The denial of the liability began to change at that stage but that was some six months after it had become necessary for me to issue court proceedings.
Had my client perhaps been not supported by family and friends, or if she had been someone who preferred to deal with their illness in privacy, then the sheer weight of witness evidence would not have been available and would not have had the effect of presenting a completely different picture to that of the records. It was that important additional evidence which was fortunately available to my client that helped to bring the case to a successful conclusion.
Increasingly it seems courts turn to non-witness based evidence. Judges like what they think is a certainty. Medical records are however not a certainty because many of them rely on accurate completion by individual medical and nursing staff. These are records which can be challenged, but where there is a significant difference between the patient’s experience and the contents of the records, then other evidence is required. No one goes into hospital expecting negligence but increasingly with the courts reliant on the medical records, the more other evidence that can be made available the better.