Medical Records: The Only Source of Truth?

Case history

On 18 September 2007, the patient saw his GP, Dr Ferguson, who made the following record of the consultation:

Low back pain with coccyx pain. 
Low range tinnitus. SI (sacroiliac) joint pain.

The patient had a past history of Reiter’s syndrome. Dr Ferguson thought the patient’s current back pain was associated with this condition and referred him for a bone scan.

The patient underwent the bone scan on 27 September 2007. This revealed increased uptake in the right sacroiliac joint and the sacrum. The GP considered the result as being consistent with Reiter’s syndrome.

On 8 and 18 October 2007, the patient was seen by a physician, Dr Fowler. Dr Fowler made a provisional diagnosis of obsessive personality disorder, Reiter’s syndrome and associated polyarthritis. In his letter to the GP, Dr Fowler concluded:

Following a full physical examination there is a very low probability of major organic disease apart from those previously defined. I will review his results and further communicate with you. 

On 25 July 2008, the patient returned to Dr Ferguson who recorded:

Chronic lower lumbar back pain. Requesting injection. CT ordered.

The CT was performed on 28 July 2008. The report noted mild degenerative changes only.

On 19 August 2008, the patient saw Dr Ferguson again who recorded:

No relief with L and R injection. Claims legs numb, muscle wasting (which he believes is due to simvastatin). Nerve conduction studies ordered.

Nerve conduction studies were performed on 10 October 2008, which revealed no abnormality.

On 14 and 23 October 2008, the patient saw the physician, Dr Fowler, again. He complained of pain in his coccyx, numbness in his right upper thigh and right testicular pain. At this time, the patient was referred to a neurosurgeon.

On 2 December 2008, the patient was seen by a neurosurgeon and an MRI was ordered. The patient was subsequently diagnosed with a sacral chordoma in the region of S4.

Medico-legal issues

The patient commenced legal proceedings against the GP, Dr Ferguson, alleging a delay in diagnosis of the sacral chordoma.¹ In particular, the patient (now a plaintiff) alleged that at the consultation with Dr Ferguson on 18 September 2007, he had complained of severe pain in the coccyx and altered sensation and feelings of electric shocks in his legs.

The claim proceeded to trial in May 2012. At the hearing, the plaintiff referred to diary entries he had reportedly made during 2007. There was a dispute about whether these diary entries were made by the plaintiff contemporaneously or at a later time. Of note, the plaintiff’s diary entry under the heading of 18 September 2007 was as follows:

       12.00 (Michael Ferguson) if not sooner:

1. Pain in testicles – started approx six months ago. – disappeared then reappeared – sharp, stabbing pain.
   
2. Fluid in legs, pain legs walking up slopes, fluid at top of behind and pain in coccyx when walking up hills…
   
3. Tightness in chest and dry cough.
   
4. Frequent urination (sometimes every few minutes).
   
5. Where can I get my arm/elbow fixed – straightened?
   
6. Palpitations – heart.

The judge noted that a portion of the diary entry had been cut out. During the hearing, the barrister for the defendant GP put to the plaintiff that he had cut out a portion of the 18 September 2007 diary entry because he did not think it would assist his case if it remained. The plaintiff was adamant that all notes in his diary were contemporaneous.

The judge then considered the credibility of the medical records. He concluded that the clinical records of the medical practitioners to be the most reliable evidence in these proceedings. There is no doubt that each was contemporaneous in that they were made in the course of each consultation with the plaintiff. Furthermore they were made by persons who had, at the time the record was created, no interest in doing so other than making a record of what had occurred.

In relation to the defendant GP's medical records the judge noted:

Although the defendant agreed that he did not always record all the symptoms and complaints made by the plaintiff, he said, and I accept, that he recorded all the complaints that he adjudged to be serious… He said that if the plaintiff had told him of altered sensation and a feeling of electric shock in his legs he would have regarded that as a significant matter and he would have ordered a different test, namely a CT scan, rather than the bone scan… It was apparent from the defendant’s evidence that much of which he purported to recall was, in fact, reconstruction from his usual practice and from what was recorded in his clinical notes. This is understandable in the context of a medical practitioner who sees several patients every day. It does not make his evidence unreliable. Indeed… his notes are likely to be more reliable than any vestiges of recollection he may have. 

Judgment was handed down on 15 May 2012 in favour of the defendant GP. The plaintiff was ordered to pay the defendant's costs of the proceedings.

Discussion

Interestingly, in this case the patient had his own “records” (personal diaries) which were found to be inaccurate and not made contemporaneously. This contributed to the court’s finding that the evidence given by the patient was not entirely credible. In contrast, the medical records made by the defendant GP, Dr Ferguson, were found to be contemporaneous and, while not entirely “comprehensive”, these records were found to be accurate. This fact, in conjunction with the GP giving evidence in court as to his usual practice and the veracity of the GP’s evidence, meant that the GP’s version of events was accepted as accurate and judgment was entered in his favour.

Summary Points

• This judgment highlights two important issues arising in medical negligence claims: Many medical negligence claims involve two versions of events – the patient’s version and the doctor’s version of what actually happened. Ultimately, a decision as to whether there is any negligence will depend on which version of events is accepted by the court as “fact”, and all the expert medical evidence will be aligned once the facts have been determined.
• The medical records are critically important in establishing the facts. Indeed, the existence of a record made contemporaneously at the time of the consultation is often the difference between the court preferring the doctor’s evidence to that of the patient in medical negligence claims. This court decision highlights the importance of good medical record keeping in successfully defending claims.

¹Peden v Ferguson [2012] NSWSC 492