Often in clinical negligence cases, the client’s recollection of events does not match that recorded in the medical records, leading to accusations that the records have been falsified, or altered so as to discredit the client’s evidence.
In practice, this is rare. Where multiple members of a team having been treating a patient, it would require a lot of collusion and collaboration in order to deliberately make inaccurate entries and in general the court will prefer what is in contemporaneous medical records rather than the client’s account which is sometimes recalled many months or years after the event.
That does not mean, however, that it does not happen as demonstrated in the recent case of Biggerdike v (1) El Farra & (2)El-Neil [2024]. In this case the Claimant brought a clinical negligence claim against two defendants – the first having implanted the vaginal mesh and the second having carried out two procedures to remove it. The case against the first defendant centred on a failure to advise the claimant that non-operative treatment might improve her stress incontinence and a lack of informed consent prior to the implantation of the tape. The case against the first defendant was unsuccessful.
The investigations, however, mainly centred on evidence of fact, particularly in the witness statements, medical evidence and oral evidence at trial. The second defendant was an experienced and highly regarded urogynaecologist who specialised in mesh removal. When she was not a party to the proceedings, she had provided a set of medical records to the claimant in February 2019. The second defendant was subsequently joined into the claim and the same medical records were against disclosed in August 2022. These records included a report of urodynamics testing carried out on 27 June 2018 which had a handwritten annotation dated 6 July 2018, which had not been included in the original records. There were also undated handwritten annotations on the records that had been added at some point between February 2019 and August 2022.
The explanation for these discrepancies offered by the second defendant was that these annotations had been made on the paper records as an ‘aide memoire’ for the second defendant. Further analysis of the annotations made, together with anomalies in her oral evidence, however, led the judge to find against the second defendant. In particular, an annotation made by the second defendant on the report of the urodynamic studies was rejected by the judge, who stated, ‘I reject [the second defendant’s] evidence that her annotated note is a true or contemporaneous record of any discussion there might have been between them. I find it to be a contrived and false piece of evidence. Its purpose is to support the second defendant’s Defence and provide retrospective justification for performing the colposuspension’.
Falsification of medical records is rare – but as this case shows can and does happen.