In Medical Negligence Claims
What happens when there is a difference between medical records and the patient’s recollection?

A recent medical negligence case heard in Victoria’s County Court highlights the problem for injured patients where there is a difference between what the medical records say and the injured person’s recollections.

Medical negligence insurers frequently warn hospitals and health providers that if a claim is made against them, “No notes means no defence”.

While it isn’t always so black and white, the problem is obvious for a health provider with poor medical records. An injured patient is much more likely to remember their hospital or doctor visit than a busy health practitioner.

Background on the medical negligence case of Fischer v Brown

The case of Fischer v Brown [2021] VCC 104 is a timely reminder about the dangers of a patient claiming that their memory of events is correct, and that the medical records are wrong.

The case centred around a factual dispute between Ms Fischer and Mr Brown about what was said and done before and after the first surgery.

Ms Fischer underwent a surgery in relation to breast reduction which was performed by Mr Brown. She claimed that the surgeon was negligent in failing to warn of the risks of smoking before surgery, and negligent in failing to recognise and treat death of the breast tissue after the operation.

She alleged that the delay in diagnosis and treatment led to her needing a number of further operations, and ultimately to a much worse outcome.

The differences between the medical records and the plaintiff’s recollections

Ms Fischer alleged that she remembers Mr Brown advising her to try to cut down her smoking before the surgery to 4-5 cigarettes per day. The medical records supported Mr Brown’s evidence that he advised her to stop smoking for 6 weeks before the surgery, and that he warned her specifically of the risks of continued smoking and impaired wound healing.

Ms Fischer also alleged that at a post-operative exam, she complained of being in significant pain and that she was experiencing significant swelling. This recollection was not supported by the medical records.

Mr Brown’s evidence was supported by medical records which stated that, with a nurse present, he conducted an examination of each breast and found that the appropriate course was to watch and wait to see if further surgery would be required.

Medical negligence claim fails

Ms Fischer was unsuccessful in her medical negligence claim for damages.

The main reason for this was that the Court preferred the evidence of the medical records to Ms Fischer’s recollection of what was said and done. The Court accepted that in light of the version of events outlined in the medical records, the advice and treatment provided by Mr Brown was reasonable.

The Court generally regards medical records to be highly accurate

In general, Courts are very slow to disregard medical records made at or soon after medical treatment is provided. The reasons for this are clear. A health practitioner making records at the time of treatment is extremely unlikely to have any motive other than noting down what was said and done in relation to the patient.

By contrast, human memory is a fragile thing, and the recollections of patients can be affected by time, stress, and pain. It is important to understand that these factors weigh heavily on a Court, even where there is no suggestion that the patient is lying, exaggerating or fabricating their evidence. A Court commonly finds that a witness is honest but mistaken because their memory conflicts with more concrete or timely documented evidence.

There are times when medical records are questioned by the Court

With the Court generally viewing medical records with high regard, it is not suggesting that the evidence of a health practitioner will always be believed over the memory of a patient. Incorrect, missing or amended records can create significant problems for a health practitioner in defending any claim against them.

In investigating any potential medical negligence claim, it is critically important to gather all of the available medical records and to carefully analyse them – checking for errors, gaps and inconsistencies. It is also important to find and draw on evidence which might support an injured patient’s recollection: photos, videos, call records, notes and witnesses.

For these reasons, patients who have experienced a poor outcome should keep a diary or make notes in relation to their treatment as a memory aid. They can then be sure that disputes over the treatment and advice provided to them can be minimised.

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