Or at least that is what the judge found in the recent case of Biggadike [Biggadike -v- (1) El Farra; and (2) El-Neil [2024] EWHC 1688 (KB)].
Case Overview
This is a clinical negligence case arising from Ms Biggadike's treatment with tape / mesh for urinary stress incontinence.
Briefly, the claim was brought against two defendant urogynaecological surgeons. The first defendant had implanted the tape and the second defendant had undertaken two surgical procedures to remove it.
The claim against the first defendant related to pre-operative work-up and counselling and, specifically, an alleged failure to advise the claimant that non-operative treatment may improve her stress incontinence, in particular, pelvic floor exercises. The claimant also alleged that informed consent had not been properly obtained prior to the implantation of tape and specifically in relation to the particular type of tape and tape procedure that she would undergo.
Much of the case against the first defendant turned on the Court's finding of fact rather than expert opinion as to the standard of care provided. For example, the claimant alleged that she had not been informed about the option of pelvic floor exercises over surgery, whereas the first defendant averred that such information and advice had been provided.
This led to a detailed examination of the factual matrix, taking into consideration the witness statements, the medical records and the oral evidence given at trial by the factual witnesses, which in some respects deviated significantly from that previously set out in witness statements.
Court's Findings
Ultimately, the judge found that the first defendant had provided proper pre-operative work-up, counselling and information to the claimant prior to surgery to enable her to make an informed decision and thus the claimant's case against the first defendant failed.
Unfortunately for the second defendant this careful examination of the factual evidence led to a finding that, not only were the second defendant's medical records inaccurate, but they were probably also untruthful.
The case against the second defendant focused on the two operations that had been performed by her to address complications of the tape implantation. In March 2018, she had performed an operation to excise the middle portion of the tape. Later, on 28 July 2018 she undertook a further tape excision and colposuspension procedure. The colposuspension was intended to address ongoing symptoms of urinary stress incontinence. Interestingly, a complication of that procedure can be that urinary stress incontinence is increased. Unfortunately, that is what happened in this case.
The claimant alleged that she should never have undergone the colposuspension procedure, because the indications for such surgery were absent. The claimant's position was that she was not suffering with urinary stress incontinence at that time and thus the procedure should never have been offered. Had she not had the colposuspension procedure, then she would have avoided her ongoing symptoms of urinary stress incontinence; symptoms which had resolved after implantation of the tape by the first defendant.
Much turned on the accuracy of the medical records kept by the second defendant in conjunction with her factual witness evidence.
In this case, the second defendant had disclosed her medical records on two occasions. The first disclosure took place in February 2019 at a time when the second defendant was not a party to the case.
The second disclosure took place in August 2022 by which time, the second defendant had become a party to the case. Interestingly, the tranche of records that was disclosed in August 2022 had been annotated in a number of places.
The claimant had asked the second defendant to clarify how those annotations had come about and after some dispute, the second defendant was ordered to provide an explanation. In complying with the Order, the second defendant provided a supplementary factual witness statement in which she indicated that any annotations had been made "near contemporaneously" and simply as an aide memoire to her. It is not clear specifically for what purpose the aide memoire was required.
Judge's Conclusion on the Second Defendant's Records
One of those amendments related to urodynamic studies performed on 6 July 2018, around 3 weeks prior to the second operation on 28 July 2018 (the colposuspension and removal of further tape). The urodynamic study report indicated that there was no complaint of stress incontinence by the claimant. However, an annotation made by the second defendant (seemingly added after the second defendant had been brought into the case) indicated that there had been a discussion with the doctor performing the urodynamic studies and that there had been some complaint of mild stress incontinence. It indicated that those symptoms had persisted following the initial implantation of the tape.
None of the other records preceding that indicated that there was any ongoing stress incontinence and between the last record made before the urodynamic studies and the urodynamic studies being undertaken and reported upon, there had been no further communication with the claimant which could have given rise to such a report.
The question of whether stress incontinence had been reported by the claimant became central to the issue of whether a colposuspension should have been offered or not. In the absence of features of stress incontinence, the procedure would not be indicated. The Judge considered all of the evidence and concluded that the annotations had not been made contemporaneously or near contemporaneously as claimed but had more likely been added at a later date to provide retrospective justification for the procedure and to support the second defendant's defence. The judge stated at paragraph 355:
"...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."
Discrepancies in Medical Records
It is not uncommon that we find inaccuracies in the medical records or that the medical records do not directly accord with the claimant's recollection of the case or indeed a defendant's recollection of a case.
However, that is usually because the medical records are lacking in detail and, with the passage of time, a witness's recollection may become hazy and attempt to fill in gaps in memory, particularly where a defendant may have to draw on his or her usual professional practice where detail in the contemporaneous note is lacking.
However, it is highly unusual to find a scenario such as this where medical records positively purport to describe a clinical picture which cannot be accurate. Like many clinical negligence cases, this is a particularly interesting example of the importance of careful examination of the factual evidence, not only that contained in documents but also in the evidence given by all witnesses.
There is a significant difference between the honest but mistaken witness who is genuinely trying to assist the court, and the scenario that we find here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.