Care needs to be taken when making records of clinical consultations or treatment. The time-pressures of modern practice mean the creation of a comprehensive note is easy to overlook. However, the omission will come under close scrutiny if the clinician is faced with a GMC referral, clinical negligence claim or inquest.  Although failure to record something in a patient record is not proof it was not done, it will undermine the clinician’s evidence.

Effective record-keeping

Clinical records serve not only as a reminder of the consultation or treatment, but the agreed actions, steps taken and outcomes.  They are vital for the continuity of care as they provide key information to other clinicians who may see the patient. Clinical records should cover not only treatment and care, but include telephone consultations, test results, correspondence and any hand written notes. Complaints correspondence does not form part of the record and should be filed separately.

Impact on clinical negligence claims

Medical records are the evidential starting point in a clinical negligence claim.  A clinician’s first and last impression is likely to be made through the records he has made.  Judges tend to equate carefully made records with careful practice.  If there is any doubt about the care or treatment provided a judge is likely to resolve an issue in favour of a witness with corroborating evidence or discount oral evidence when not supported by a clinical record. 

In the case of Hassell v Hillingdon Hospitals NHS Foundation Trust (2018), a surgeon’s evidence about the consent process was rejected as inconsistent and missing words in a clinic letter were resolved in the Claimant’s favour. Sometimes it is possible to defend a claim despite there being no record.  In CXB v North Anglia NHS Foundation Trust (2019) the High Court determined that there was no general principle that clinical notes should be preferred for reliability over oral testimony, because of the unreliability of a witness’s recollection. CXB’s mother alleged that she was refused a caesarean section causing her baby’s birth injury. There was no mention of her request in the clinical notes. Nevertheless, the judge decided there was insufficient material to conclude that the notes were unreliable and judgment was entered for the Defendant.  This decision turned on its own facts and lack of a record will more often mean an uphill struggle to defend the claim. 

Inquests

It has been reported that Coroners have issued a significant number of Future Death reports where failings in record keeping were an issue.  Examples included failure to upload handwritten notes about a patient’s state of mind, misinterpretation of a handwritten test request which led to it being disregarded and the records which were illegible to clinical staff involved in the deceased’s care.

Practical considerations

When making medical records the following should be borne in mind.

Records should be:

• Clear and legible
• Accurate and complete
• Detailed—key negative findings should be recorded along with the proposed treatment/care
• Contemporaneous
• Signed, dated and timed

Further guidance can be found in the GMC’s Good Medical Practice.

Records must not be altered retrospectively, save in two discreet circumstances:

1. If the record contains an error, correct it by striking through the incorrect information (so that the original text can still be seen) and sign and date the correction
2. If an additional note is required, add it as soon as possible, explaining why, and sign and date it.

Other elements to bear in mind:

• Ensure information is entered for the correct patient
• Take special care with tick box forms, where there is a greater risk of human error
• Carefully check notes or letters transcribed by a 3^rd party for accuracy and completeness.
• Record notes of telephone advice/triage after each consultation
• If consulting without notes, make a contemporaneous paper record immediately after seeing the patent and transfer to the computer record as soon as possible
• Ensure that records are kept secure and confidential
• If a Serious Incident Investigation reveals that poor record keeping was a factor in a patient death, ensure that procedures have been reviewed, proposals for improvement implemented and a system for audit devised before the inquest, to mitigate the risk of a PFD report.

How Capsticks can help

Capsticks is a market leader in the healthcare and inquest field and is ranked in the top tier for inquests and clinical negligence work by the Chambers Guide to the legal profession and the Legal 500. We have dedicated teams of clinical negligence, insurance, inquest and information governance specialists who can assist with any aspect of medical record keeping, clinical risk management, negligence claims and inquests.  To find out more about our services, please visit our website or contact Majid Hassan, Georgia Ford, Tracey Lucas or David Roberts.