Contemporaneous record keeping and insurance policy conditions – some lessons for medical professionals

The recent judgment in Toombes v Mitchell highlights the importance of contemporaneous record keeping and the associated risks when the exact advice provided by a medical professional is in dispute. We look at that decision and give a nod to policy terms and conditions that require an insured doctor/surgeon to maintain good records of their interactions with patients.

The claim

The claimant – a 20-year-old woman, born with a neural tube defect causing spinal cord tethering – had significant disabilities, including suffering from impaired mobility and double incontinence. It was the claimant’s case that the defendant doctor provided negligent advice to her mother at a pre-conception consultation. Specifically, it was alleged that the doctor failed to advise the mother about the risks of neural tube defects from folic acid deficiency.

The claimant’s mother recalled asking the defendant about folic acid and being reassured that if she was eating a healthy diet, taking supplements of folic acid was not necessary. It was her evidence that had she been advised of the risks, she would have taken supplements and delayed conception. In those circumstances, it was said that the claimant would not have been born, but a genetically different sibling, conceived later, would have been born without the neural tube or any other defect.

The defendant had no recollection of the consultation. However, it was said that he would have provided advice in accordance with the relevant guidance at the time. This included a recommendation of folic acid supplementation for women preparing for pregnancy and in the first trimester. Medical records prepared by the doctor would be invaluable in evidencing this account. However, much to the dismay of the court (and the doctor), the note merely read “Preconception counselling. Adv. Folate if desired discussed”.

The defendant did concede upon reflection that the note of the consultation was inadequate. He nevertheless maintained that his usual standard of practice would have been provided. The judge was not persuaded. He commented:

“I formed the view that he was attempting to reconstruct a conversation / consultation on the basis of that inadequate note which required him to speculate or make assumptions about what was said. I find therefore that his evidence was not as reliable as it would have been if the note had been complete as it should have been”.

The decision

The claim was upheld. The judge found that the consultation note was inadequate and gave the impression that folic acid supplements were not a necessity. Further, adequate advice had not been given and, if it had been given, the claimant’s mother would have followed it.

The consequences of the lack of a comprehensive medical record of the consultation meant the advice provided could only be substantiated by the parties’ recollection of the consultation. For most doctors, recalling the content of an – at the time – insignificant consultation that took place 20 years ago would be impossible. It is not surprising therefore that the mother’s account was found to be more reliable.

Insurance policies

The significance of medical records becomes even more pertinent for claims covered by professional indemnity insurance. Most policies will include a clause requiring the insured to maintain full and accurate records of all medical and clinical services rendered. Consequently, incomplete documentation will not only have the potential to determine future disputes but also may prejudice cover under an insurance policy.

The effect of Gestmin

The claimant’s mother in Toombes v Mitchell was found to have given a truthful account of the consultation. However, there is still a possibility that her recollection was inaccurate. The human memory can be unreliable, meaning witness evidence must be approached with caution. The case of Gestmin SGPS SA v Credit Suisse (UK) Ltd outlines the key principles to be considered when assessing the credibility of witnesses. For example, the process of litigation becomes an intervening factor in a witness giving evidence. Memory of an event may be coloured by a number of factors, including documents that the witness has read after the event. Leggatt J (now LJ) provided powerful commentary on the fallibility of memory, observing:

“Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

The risks of relying solely on witness evidence are clear. Ideally statements should be supplemented with documentary evidence and known or probable facts. Thus, when applied to medical consultations, a patient’s recollection must be evaluated against what is documented in the medical records. If the documentation is sparse, only then should the case rest upon whose recollection of events is more reliable. (For a recent review of the cases discussing the weight to be attached to oral evidence as compared to such clinical notes, see Freeman v Pennine Acute Hospitals NHS Trust.)

What are the causes of inadequate record keeping?

Inevitably medical professionals need time to keep good records and this time is often lacking. A recent study published in the Journal of Patient Safety December 2021 edition titled ‘Does an Orthopedic Ward Round Pro Forma Improve Inpatient Documentation?’ address the issue. The study found that the introduction of a pro forma for documentation of daily ward rounds improved compliance of ward round notes when evaluated against internationally recognised guidelines, with no additional time required during ward rounds. However, whilst initial compliance was positive, a review of the study two months later found a significant decrease in information completeness.

It appears therefore that a template will encourage comprehensive note taking but it is not a permanent solution. A continued effort among medical professionals will be necessary in order to prevent a Toombes v Mitchell-esque dispute. 

Practical steps

The Royal College of Surgeons provides guidance on effective record keeping, placing an emphasis upon ensuring the accuracy, clarity and legibility of medical records.  Practical advice for achieving this includes:

  • Being fully versed in the use of electronic health record system used by your organisation;
  • Taking part in training offered by your organisation;
  • Ensuring that there are clear (preferably typed) operative notes for every procedure;
  • Ensuring that sufficiently detailed follow-up notes and discharge summaries are completed to allow another doctor to assess the care of the patient at any time.

If there is any lesson to be learnt from the case, one might say it illustrates the reasons for the obsession with record keeping, and having a contemporaneous accurate record of an event, as was challenged here, is one of them.

For more guidance, please read:

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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