Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 46
But legally, that gap between “decision” and
“documentation” becomes very important.
but it quietly shifts responsibility onto the patient.
That only works safely if one condition is met: the
patient knows what has been requested and what
they are supposed to do next.
What is missing, though, is the one thing that matters
most in this scenario: any clear, contemporaneous
evidence that the patient was told about the X-ray
and what to do next.
When that step fails, the system doesn’t visibly
break. It just quietly fails downstream.
Communication vs “Usual Practice”
The GP defendant, described as a competent
and conscientious clinician, had no independent
recollection and relied on her usual practice of
explaining investigations and access arrangements.
From a GP perspective, that makes communication
not a “soft skill”, but a safety-critical step. The
greater the reliance on patient initiation, the
greater the importance of explicit explanation and
documentation.
This is a familiar evidential position in primary
care litigation. However, the court preferred
contemporaneous documentation.
Documentation isn’t defensive
- it’s functional
There’s a tendency in primary care to think of
documentation as something we do for medico-legal
protection. That’s not really the right way to think
about it.
From an expert witness perspective, this re昀氀ects
a consistent judicial approach: contemporaneous
clinical records are given greater weight than
reconstructed accounts based on habitual practice.
The more accurate framing is this: if it isn’t
documented, it’s very di昀케cult to prove it happened.
Usual Practice: Evidential Weight and Its
Limits in Clinical Negligence Claims
In this case, a single line such as:“CXR requested,
patient advised to attend walk-in radiology” would
likely have changed the evidential picture entirely.
Where records are silent, and particularly where
other entries demonstrate that similar discussions
are routinely documented, courts are entitled to
infer that the communication did not occur. This is
not a criticism of clinical care; it re昀氀ects evidential
hierarchy.
That’s not about defensive medicine. It’s about
closing the loop.
Behaviour matters more than we
sometimes admit
The Consultation Extends Beyond the
Consultation Room
One of the more subtle aspects of the judgment is
how much weight is placed on what the patient was
likely to do, not just what was recorded.
One of the most important practical points
this case highlights is something GPs know but
often underestimate in its legal signi昀椀cance: a
consultation doesn’t 昀椀nish at the end of the face-toface encounter.
This wasn’t a disengaged or chaotic patient. He was
health-aware, proactive, and had already sought
assessment. In that context, the court found it
unlikely he would have ignored a potentially serious
investigation if he had been told about it properly.
Ordering the test, coding it, sending the text,
昀椀nishing the notes—all of that often happens after
the patient has gone. This is operationally e昀케cient
but legally signi昀椀cant.
Whether one agrees or not, this re昀氀ects a broader
trend: courts increasingly test clinical narratives
against realistic human behaviour, not just
paperwork.
If an investigation is generated post-consultation,
or not explicitly communicated before the patient
leaves, a critical step remains incomplete: patient
understanding.
Contributory negligence remains a
high bar
The court, in essence, separated two things we often
blur together in practice:
•
initiating care (ordering the X-ray), and
•
delivering care (ensuring the patient
understands and can act on it).
Attempts to argue contributory negligence in
cases like this usually struggle, and this one was no
exception.
Patient-Led Systems Increase Risk
Missing an appointment or not following up isn’t
enough on its own. There has to be evidence the
patient understood:
The ICE walk-in model is widely used and e昀케cient,
•
EXPERT WITNESS JOURNAL
44
that further action was needed, and
JUNE 2026
