Why do judges like contemporaneous medical records so much?

September 26, 2018

 

It has always been an annoyance to claimants.  When advised that a contemporaneous medical record is likely to be found to be accurate, many claimants are left with the distinct feeling that all a clinician - who is often already a rogue or reckless in their eyes - has to do is to write a note that is untrue or at best self-serving in the records and they are off the hook.  The advice is often taken straight away in that the claimant accepts that the note can't be overcome but is adamant that it is wrong or, on occasions, simply "a lie" that can't be proven.

 

So why do the courts regard contemporaneous notes as so likely to be correct?  I've always explained it using these points:

 

1.They are made by professional people, the courts imputing some inherent integrity

2.They are made long before anyone considered that they would be pored over in a court (unless of course you subscribe to the view that poor quality clinicians routinely enter self-serving and untrue entries in the clinical record)

3.They are likely to be seen by other professionals at or about the same time so any inaccuracy may be obvious

4.If computerised, most software has the ability to lock out the clinician from adding or editing notes on a subsequent date

5.I've often described them as a "raft" of relative certainty that a tribunal can cling to in a sea of competing versions of events.  When it's "He didn't ever tell me that" versus "I cannot remember that actual conversation but my usual practice is that I would tell every patient that and my notes record that I did" then the contemporaneous note is the raft where most judges will be found in my experience.

 

Perhaps as good as anything is this assessment (repeated last month in Claire Manzi v King's College Hospital NHS Foundation Trust  [2018] EWCA Civ 1882) from the Court of Appeal in Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283, [2016] Med LR 1 where at [14], 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.

 

 

 

 

 

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