Medical Records and Oral Evidence – A Guide for Doctors
In CXB v North West Anglia NHS Foundation Trust  EWHC 2053 (QB) (July 2019) it was held that clinical records do not automatically carry more weight than oral evidence. The absence of an entry in the medical notes does not mean that the court cannot prefer the oral or other evidence in the case. It is the totality of the evidence that must be evaluated, taking into account the unreliability of memory over time, and any contemporaneous and other documents or evidence that may have been generated over time. At para 13, the approach to be adopted by the court was said to be:
“whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the clinical record is unreliable or incorrect or whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the witness evidence to the contrary is unreliable or incorrect. That is the issue which is for the court to decide viewing the documentary and testamentary evidence forensically and not simply by subjective criteria such as demeanour of live witnesses.”
Some witness training courses (and indeed some lawyers), by contrast, suggest “if it isn’t written down it didn’t happen” but in our view this mantra is wrong.
Doctors will often recall events that do not necessarily accord with the clinical records or where the records are quiet on the subject matter. This does not mean that the doctor’s evidence will not be preferred. There are a number of cases where the oral evidence have been preferred over that of available documentary evidence and the above case affirms that the approach is correct. Each case turns on its own facts and therefore a full analysis should be taken of all of the available documentary and other evidence in a case. Oral testimony will be assessed along with other evidence and be given the weight that the court considers appropriate. This case law is relevant to both GMC cases and medical law cases more generally.
Notwithstanding the above, other cases have held that contemporaneous records are often of persuasive weight. This case usefully covers the evidence that a judge must assess when considering the accuracy of the evidence advanced: Mainline Digital Communications Ltd v Chaddah (t/a ‘2-Way Communications’)  EWHC 1580 (QB):
“13. There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the ‘demeanour’ of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.
“14. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence’.”
See an example of alleged “wishful thinking” during the recollection of a witness of a conversation with a GP surgery, in a Scots case: MARGUERITE HENDERSON AGAINST BENARTY MEDICAL PRACTICE  ScotCS CSOH_28
“ This is an extremely poignant case in which I have concluded that, while Mrs Henderson is convinced that the recollection of the telephone call she now gives is accurate, her account is based on the kind of “wishful thinking” referred to by Lord Pearce in Onassis v Vergottis  Lloyd’s LR 40″
Read, also, our other case law digests:
Doctors Defence Service represents doctors in UK medico-legal proceedings. To discuss matters concerning oral and documentary evidence in a GMC or other medical law case, contact Doctors Defence Service on: 0800 10 88 739