Busy medical practitioners may not recall patients years down the track when claims are made. They should have notes of their attendances but those notes may not address the specific complaints that are ultimately the subject of litigation.  What happens when a medical practitioner cannot recall the advice that they provided at the time? The decision of Neville v Lam (No 3)1 considers how medical practitioners may rely on evidence of usual practice to defeat an allegation of medical negligence.

Background

The plaintiff underwent an endometrial ablation procedure, performed by the defendant, to treat severe menorrhagia on 3 November 2004.  In late 2005, the plaintiff became aware that she was pregnant, and she gave birth to a disabled baby boy on 24 August 2006.

The plaintiff alleged that she believed that it was not possible   for her to become pregnant after the procedure.  According to the plaintiff, this mistaken belief was because the defendant   had negligently failed to advise her of the risk that she could still conceive.

The defendant could not recall what advice he had provided during his consultations with the plaintiff.  He did, however, deny that he had failed to warn the plaintiff of the risk of pregnancy. While his notes did not specifically refer to having given such a warning to the plaintiff, he claimed that this was his usual practice, as evidenced by numerous academic articles he had published concerning the advice to be given to patients undergoing the relevant procedure.

Decision

The Court found that the plaintiff had failed to establish, on the balance of probabilities, that the defendant did not advise her of the risk of pregnancy.  It acknowledged the difficulty of this burden on the plaintiff in the context of an oral statement, but on balance preferred the defendant’s evidence about his usual practice.

The Court stressed that there were a number of difficulties associated with relying on evidence of usual practice. For example, such evidence is hard to scrutinise and, the less mechanical and routine the task, the less influential an assertion of “usual” practice will be.

In this case, however, the defendant’s assertion of his “invariable practice” supported by his publications on the issue, swayed the Court.

Comment

In medical negligence cases, when a plaintiff alleges that a medical practitioner did not provide advice, the burden is on the plaintiff to prove that on the balance of probabilities, the advice was not given.

If a medical practitioner cannot recall whether or not the advice was provided, they may be able to rely on evidence of their usual practice.  Obviously, there is no substitute for thorough note taking, even in the most routine cases.