HXC (by her litigation friend) JXS vs Hind, Craze [2020] 10 WLUK 603
The facts
On 8 June 2016, the then 24-year-old Claimant suffered a catastrophic subarachnoid haemorrhage arising from the rupture of a 10-11mm left internal carotid artery aneurysm. As a result of the haemorrhage she had a dense hemiplegia. Quantum was agreed with a capitalised value of £7 million.
On 19 and 27 May 2016 the Claimant had suffered from sentinel headaches which preceded the haemorrhage. On 19 May she was seen by the First Defendant (a nurse practitioner). The Claimant claimed that the First Defendant negligently failed to ask about the onset of her headache and that, if she had done so, the Claimant would have reported that it had been of sudden onset which would have mandated immediate referral to hospital. There was no reference in the records about onset. The First Defendant’s case was that, as per her invariable practice, she had asked the Claimant about onset and that the response must have been that it had been gradual. It was not necessary to make a note of this aspect of the history as it was, in terms of a “red flag”, a negative finding.
On 27 May 2016, the Claimant was reviewed over the telephone and then in person by the Second Defendant (a GP). The Claimant alleged that (again) the Second Defendant negligently failed to ask her about the onset of the headaches and that, if he had done so, she would have reported that it had been of sudden onset which would have mandated immediate referral to hospital. The Second Defendant’s case was that he did ask about onset and the response was that it had been gradual. The Second Defendant accepted that his note of the consultation was inadequate as it did not contain any detail of examination or a diagnosis. He said that this was, in part, because of the time pressure because he had devoted so much time to the Claimant. The amount of time spent with the Claimant was an issue between the parties.
The Claimant was seen by paramedics on 29 May 2016, who noted that she reported a gradual onset of her headache. She was also seen later that day at the walk-in centre, where no express reference was made in the notes to onset. HHJ Cotter QC noted that the Claimant had not brought any claim against the ambulance service, despite alleging that their note was inaccurate, nor against the walk-in centre doctor. Similarly, she had not brought a claim against a GP who saw her on 7 June 2016, who again made no reference to onset. The Defendant argued that if the Claimant had not brought a claim against the paramedics for negligence then the court as a matter of law should assume that the document was accurate as to what the Claimant’s response had been when asked about her headaches.
Factual assessment
The judge noted that it was not disputed that it was mandatory for both Defendants to ask the Claimant direct questions about onset of her headache. The fundamental issue was whether or not they had done so. The Claimant was unable to give evidence, but on her behalf reliance was placed on the inferences that could be drawn from the notes as to the thought processes of the writer, the circumstances of each consultation and the conclusions reached by the Defendants, the poor quality of the notes indicating poor clinical practice, and the expert neurosurgical evidence that it was likely that the headaches had been sudden onset.
With regards to the issue of the accuracy of the paramedic records, the judge reviewed the relevant factors under the Civil Evidence Act 1995 concerning hearsay evidence, and identified that there was a question as to whether “the starting point as regards the weight to be attached be that a contemporaneous record produced by a medical professional is likely to be accurate?” The Claimant referred to medical professionals being taught the mantra that “it if is not there, it did not happen” in order to encourage them to make full and accurate medical records. The judge held at [137] to [138] that:
“…a court can and often will taking [sic] a starting point, but no more than a starting point, that a contemporaneous entry made by a medical professional is likely to be a correct and accurate record of what was said and done at a consultation/examination.
There is a clear evidential difference between the position where a Claimant (or another witness of fact) gives evidence in relation to an entry in a record that it is not correct (and the court is faced with a clear factual dispute) and the position where no such evidence is adduced. In the latter case, as here, the attack can only be through indirect evidence and inference, but not speculation.”
The judge held that, while there was some evidence that could suggest the record was inaccurate, nevertheless the paramedics had clearly been focussed on the onset of the headache and had otherwise conducted an appropriate and comprehensive review, and on balance accepted the record as accurate.
The judge went on to hold that both Defendants had asked about onset. When reviewing the expert evidence, the judge stated that the Claimant’s expert neurosurgeon had departed from his role as an expert through speculating as to why the paramedics had made a mistake on 29 May 2016 in recording that the Claimant’s headache had been of gradual onset, rather than acknowledging that this was evidence that did not fit his theory of the Claimant having the classic presentation of a sentinel headache. He commented that “an expert trying to mould the facts to fit a theory is not an edifying sight.” The judge concluded that he was not satisfied on the expert and factual evidence that the Claimant’s headaches on either the 19 or 27 May 2016 were more likely than not to have been of sudden onset. Accordingly, the Claimant had responded to the Defendants’ questions by telling them they were of gradual onset.
Comment
The judgment was subsequently cited by HHJ Cotter in his later judgment in Failes v Oxford University Hospitals NHS Trust [2020] EWHC 3333 (analysed in Issue 8) concerning the likely accuracy of medical records. He also referred in Failes to Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283, where Tomlinson LJ held that:
“Clinical records are made pursuant to a clear professional duty, serious failure in which could put at risk a practitioner’s registration. Moreover, they are not compiled simply as a historical record, they fulfil an essential and ongoing purpose in informing the care and treatment of a patient. Contemporaneous records are for these reasons alone inherently likely to be accurate.”
In Ismail v Joyce [2020] EWHC 3453 (QB) (analysed in Issue 8) the court also had to consider the conflict between witness evidence and the GP’s record. Having referred to the various dicta concerning the unreliability of memory, HHJ Freedman held that:
“In evaluating the lay evidence in this case, in particular that of the Claimant and her sister, I have found all these dicta to be of considerable assistance. They are of particular application in circumstances where medical records do not necessarily bear out of what is recalled by the Claimant and her sister. The inherent unreliability of memory does mean that it is fair and proper to test the accuracy of recollections of medical consultations against what is documented in the records.
On the other hand, it does not necessarily follow that just because the complaint of a particular symptom does not feature in the record of a consultation, it was not, in fact, mentioned by the patient. Sometimes a doctor will obtain an extensive history and make a very detailed record. Sometimes, because of pressure of work or for whatever other reason, a doctor may take a less extensive history and will make a somewhat briefer note.
I must also bear in mind that it is human nature for a patient not always to give precisely the same account of his or her symptoms to every doctor who examines him or her. Much may depend upon the questions which are asked by the doctor. Equally, the patient is likely to emphasise and stress the symptoms which are troubling them the most at the particular time of the examination. The medical records need to be scrutinised, with these matters in mind.”
Jeremy Hyam QC represented the Defendants in HXC v Hind but had no part in the writing of this article. Readers can find other articles analysing recent decisions commenting on witness evidence on our website here.
