Fact-finding: the importance of contemporaneous notes

On 29th August 2018, the Court Appeal handed down the Approved Judgment in Manzi v King's College Hospital NHS Foundation Trust [2018] EWCA Civ 1882

05 September 2018

Author: Anna Haines-Smyth
Practice Area: Healthcare
Sector: Healthcare

Anna_haines-smyth

Lord Justice Ryder and Lord Justice Sales dismissed the Claimant’s Appeal against the order of The Honourable Mr Justice Nicol who had dismissed the Claimant’s claim for damages for medical negligence. The issue in the case related to the amount of placenta that was retained in the Claimant's uterus following the birth of her son in May 2011. The Claimant alleged that the treating doctor negligently failed to see on the ultrasound scan that a substantial part of the placenta had been retained. The Defendant accepted that a small piece of placenta may have been retained after the birth. The parties agreed that the critical issue of fact determining liability was whether the placenta that was retained after the Claimant gave birth was substantial (about 7 cm in length) or small (about 2 cm in length).

The Claimant referred to a relevant medical note written after the subsequent operation to remove the retained placenta in April 2011. The medical note stated: “explained removed products with forceps [approximately] 8cm”. The Claimant asserted that 8cm was a substantial size/piece of placental tissue. The Defendant did not rely upon a witness statement from the clinician involved with the consequence that she was not called to give oral evidence. The Judge held that there was no evidence that the doctor was speaking from first-hand knowledge as to the size of the retained placenta. The use of the symbol meaning 'approximately' did not lend itself to a conclusion that she had herself measured the object. She referred to what was removed as 'products', which included the placenta but excluded blood clots, but as the Judge said: “one must also guard against being overly legalistic in the interpretation of such a note”.

The Honourable Mr Justice Nichol held that the placental tissue was not substantial and determined liability in favour of the Defendant.

On Appeal, the Claimant submitted that the law requires the Court to recognise the likelihood that the contemporaneous medical notes (stating “[approximately] 8cm”) were accurate, unless shown otherwise.

Lord Justice Ryder rejected the Claimant’s submission, in this regard. At paragraph 25 he stated that the proposition that a contemporaneous clinical record is inherently likely to be accurate, does not create a presumption in law, that has to be rebutted in the manner submitted by the Claimant. A medical note is an “important factor” when assessing evidence and reasoning is, therefore, necessary to explain how medical notes (or their absence) are being treated, on the facts of a particular case. Lord Justice Ryder stated that to raise the bar (so high) so as to require an analysis of what might be sufficient to displace “inherent reliability” on every occasion would lead to an onerous/mechanistic process of fact-finding.

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