EWJ 60 April 2025 web - Journal - Page 15
because failing to make accurate notes is a breach of
professional duties.
records are not infallible, there is a high risk they will
be preferred.
When assessing the Defendant doctor’s evidence she
found that the claim he now advanced that the records
were inaccurate was not reliable because:
l When disputing such records, the earlier differences
l The explanation for the error was illogical
l Where consistent records are made by multiple
are raised, the more likely the witness is to be
preferred.
different practitioners, a Court will be slow to prefer a
witnesses’ recollection to the records.
l The inaccuracy was a breach of the GMC’s Good
Medical Practice.
l If you (or your expert) seek to amend your case, the
l If he had known of an issue at the time (which he
earlier the better and no later than at joint statements.
The Court is likely to refuse any amendment which
does not give the medical experts sufficient time to
consider and respond to it.
now claimed he did), he could have clarified in a free
text box. That he didn’t is a cause for concern.
l At times in the witness box he failed to answer the
questions put to him.
l Multiple amendments are also likely to undermine
l At other times his evidence was internally inconsis-
the credibility of the case advanced.
tent.
l The Judge commented on the unnecessary amount
l At one point he conceded an error in his recollection
of medical records, 27 files, the majority of which were
never referred to. The Court will approve of at least
agreeing a key bundle of medical records with the other
side, if not an attempt to filter out irrelevant medical
records in a case where records are so extensive.
of events, which highlighted the fallibility of accurate
memory after so many years.
l The inaccuracy of the record was not mentioned in
an investigation into the incident done only a few
months later or in the letter of response three years
on. It was not raised until pleaded in the defence, 7
years after the incident, 5 years after the letter of claim.
l The Judge commented on the assistance the Parties
gave by arranging same-day transcription. This
should be arranged, if possible, for the benefit of both
Parties, as well as the Court.
In respect of the Claimant’s witnesses’ evidence on the
Claimant’s level of functioning.
Author
Thea Wilson
Call 2008
Areas of expertise Clinical Negligence, Personal
Injury, Inquests, Fraud, Costs, Industrial Disease,
Credit Hire
l The way the statements had been prepared, with
identically phrased paragraphs in three different statements, was unsatisfactory and undermined the
cogency of the evidence of those witnesses.
l There was a startling difference between the rosy
picture painted and the contemporaneous medical
records was resolved in favour of the records. HHJ
Kelly found that “It is far less likely that multiple medical
professionals all made errors in their notetaking” than that
the Claimant’s witnesses’ current recollections were in
error. This undermined the evidence of these witnesses’ carers regarding the level of functioning.
Email: wilson@12kbw.co.uk
www.12kbw.co.uk/barristers/
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Learning points for practitioners
Practitioners can take the following useful guidance
from the Judgment:
l When witnesses, lay or otherwise, disagree with
contemporaneous medical notes, take care. Whilst
Mr Andrew Baird is a Consultant in Adolescent and Reconstructive Urology. He graduated from The University of Liverpool Medical School in 1995 and trained
in general surgery and urology before beginning higher surgical training in adult urology in the Mersey Region.
His research interests include the long term outcomes for Bladder Exstrophy/Epispadias complex, and long term outcomes of reconstructive urological surgery
in children and young adults. Mr Baird is a panel reviewer for a number of Urological journals, and a regular invited speaker at International events talking on
Exstrophy/Epispadias, Adolescent Urology and Transitional Care.
Mr Baird regularly undertakes medicolegal cases in the areas of medical negligence (for plaintiff or defendant) and personal/accidental injury claims.
His areas of specialist urological expertise are reconstructive urology, voiding dysfunction, adolescent urology and some areas of paediatric urology.
Tel: 0151 529 3775 (secretary) - Alternate Tel: 0151 709 7066 (medicolegal venue)
Email: info@andrewbaird-urology.co.uk - Web: www.andrewbaird-urology.co.uk
Practice address: Sefton Hospital, 1 Kenilworth Road, Blundell Sands, Liverpool, L23 3AD
Medicolegal consultations address: 88 Rodney Street, Liverpool, L1 9AR
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