Medical records are an important part of personal injury cases. If those notes happen to be scrutinised in a civil trial, that trial will probably take place somewhere between two and five years after the notes were made. As the years go by, the notes can develop into the most crucial evidence in the case. We have all seen cases go wrong when a judge places more weight on a line in a GP or A&E note, than they do on the evidence of the claimant before them:’ Are you saying that I should simply ignore the fact that this doctor has recorded, a matter of hours after the accident, that it was his left shoulder which was injured, not his right?’ And so on. Very often this reliance is well-judged. But medical records are obviously not infallible. When we use medical records in court, we use them for a purpose for which their makers did not intend them.
As the Judge said in Shaw :
Very often medical records do provide the best evidence of what was happening at the time. However, they are not infallible, and they must be weighed and tested just as other evidence is.
This was a clinical negligence claim and, unlike in most personal injury cases, the doctor who made the disputed record gave evidence at the trial the defendant could not remember the consultation (which lasted no longer than 12 minutes in 2013). His evidence at trial was that he would not have typed ‘no red flags’ if he had not examined for red flags, or if he had found any ref flags. The Judge accepted the evidence of the claimant and her husband that she had been wheeled into the consultation in a wheelchair. The use of the wheelchair was not noted in the defendant’s record. This meant that the record was unreliable. The claimant had indeed been showing red flags for cauda equina at the time of the consultation.
In personal injury litigation the maker of the medical note will invariably not be called as a witness. The medical records are hearsay. In the case of Denton the Judge said: What the doctor writes down as having been told him by the patient, as opposed to the opinion that he expresses on the basis of those statements, is not at that stage evidence of the making of the statement that he records. Rather where, as here, the record is said to contradict the evidence as to fact given by the patient, the record is of a previous inconsistent statement allegedly made by the patient. As such, the record itself is hearsay. It may however be proved as evidence that the patient did indeed speak alleged in two ways. First, if the statement is put to the witness, she may admit to having made it.
When can a judge disregard contemporaneous record?
In another personal injury case, Goodman the Court of Appeal held that a trial judge had not been entitled to accept the claimant’s evidence in light of its inconsistency with the contemporaneous medical records. The Court of Appeal Judge held that the trial judge had been impermissibly swayed by a strong performance by the claimant from the witness box.
He held: … It is generally acknowledged that it is difficult even for experienced judges to decide by reference to the witness’s demeanour whether his evidence is reliable. Memory often plays tricks and even a confident witness who honestly believes in the accuracy of his recollection may be mistaken. That is why in such cases the court looks to other evidence to see to what extent it supports or undermines what the witness says and for that purpose contemporary documents often provide a valuable guide to the truth.
Medical records are clearly important. If you are making a personal injury claim it is vital to inform the Solicitor immediately if there is anything wrong or contradictory with your medical records. The relevant records will be referred to by medical experts and may be requested by the Defendant.
