EVIDENCE, PROOF AND DOCUMENTS: MEDICAL RECORDS NOT DEFINITIVE OF CONDITION

The judgment of Mrs Justice Patterson DBE in Hunt -v- Nottingham University Hospitals NHS Trust [2016] EWHC 47 (QB) is one where the claimant succeeded in establishing negligence on the part of the defendant Trust. However there is an interesting analysis of the evidence and the documents.

KEY POINTS

  • The judge preferred the evidence of the claimant as to his condition after the operation.
  • The medical notes only provided a “snapshot”.
  • DWP applications were made with no thought of litigation in mind and clearly demonstrated ongoing problems.
  • The defendant had elected not to cross-examine the claimant on his condition after the operation.

PRACTICE POINTS

  • DWP notes are an often overlooked source of information. They are usually relied upon by defendants. Here they provided support for the claimant’s case.
  • This is another case where the medical records were not predominant. There were clear explanations for their not providing a full picture of the claimant’s condition.

THE ISSUE OF THE CLAIMANT’S CONDITION AFTER THE OPERATION

One issue between the parties was the claimant’s condition after the hospital. The defendant relied on medical records which, it was alleged, showed a major recovery.

THE JUDGE’S CONSIDERATION OF THE EVIDENCE
  1. There is clear evidence from the claimant which has not been disputed by the defendant as to his post-operative condition from July 2008 onwards. The defendant contends there is a conflict between the account of the claimant and the medical records. I am not convinced by that submission but, if there is, I prefer the evidence of the claimant. It was open to the defendant to cross-examine the claimant as to his condition and, in particular, his evidence on incontinence including its onset but the defendant chose not to do so. It follows, therefore, that the evidence of the claimant as to his ongoing condition, as set out in his witness statement where he says that in the days and weeks after the operation he was in constant severe pain and began to realise that he was becoming incontinent so that on some days he could not even leave the house is accepted. Most tellingly the contemporaneous DWP appeal documents of October 2008 provide the best evidence of his daily life, its quality and how it was affected by the operation. His account is consistent with the onset of incontinence after the July operation. That suggests that damage was done to the internal anal sphincter at an earlier time and around July 2008.
  2. The medical records doubtless record accurately the claimant’s answers to questions put to him and represent a snapshot of the claimant’s condition. But they do not provide a continuing description of the daily experience of life on the part of the claimant. It is material that, when the claimant was making his appeal to DWP, he was completely uninfluenced by any thought of prospective litigation. I, therefore, accept the veracity of his contemporaneous account of his life in October 2008 and the months preceding. His account is set out above. The reference to being incontinent on three occasions recorded in the medical records in December I accept as a reference to being fully incontinent. It follows that there was clear evidence of incontinence and the problems that was causing by October 2008.
  3. Mr Hartley said that he was surprised not to see more evidence of incontinence and its history was variable. That may well be his view but, as I have said, the contemporaneous account paints a different picture. Clearly there will be some daily variation and it may be that the fact that the claimant was on medication served to mask the incontinence from time to time, as Ms Vaizey said, which may also provide explanations for the answers given and recorded on the medical notes. I do not regard the two evidential sources, namely, the medical notes and contemporaneous account, as necessarily in conflict.
  4. The evidence of incontinence points to a conclusion, on the balance of probabilities, that incontinence was present to varying degrees from the end of July 2008. There is no evidence that it was present before.”

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