On 23 January 2013 Mr Recorder Sweeting QC heard the case of Mrs Paula Drabble v Mr Ian Hughes.
The Claimant had had a well known white patch on the left side of her mouth.
She had been under the care of Manchester Dental Hospital since 1995. The Defendant became her dentist in January 2000. In October 2004 MDH wrote to the Defendant to say that the white patches in the buccal gingivae (which were bilateral) were less tan in previous photos and that a biopsy showed nothing. She was to be checked within the practice setting and the defendant was reassured that he should “not hesitate to re-refer her if you notice, or indeed if Mrs Drabble notices any changes.”
In a nutshell, C alleged that she had complained about changes in the colour and appearance of the patch from June 2008 onwards. D said simply that that was not the case and that his records backed that up. The experts were largely in agreement and this became a straight fight between the contemporaneous records and the recollection of the Claimant.
The Judge said that “D struck me as a straightforward and helpful witness and not at all the rather unsympathetic and dismissive person described by Mrs Drabble….His evidence was clear, logical and supported by the contemporaneous material…He readily accepted criticism; in particular in relation to his record keeping where both dental experts agreed that he should have noted both negative and positive findings in relation to the lesion.”
“Mrs Drabble was a dignified and honest witness. I have no doubt about the sincerity of her recollection. I do however have considerable doubt about its accuracy. Although she said that her memory of what took place was clear she appears to have conflated at least some of the events of 2008 given the disparity between her account and what is recorded on the record cards.” [my emphasis]
The Judge went on to find that the persistent failure to record changes in the white patch was improbable.
In short, that is a fairly blunt finding that if there is a discrepancy between the recollection of C and the record cards of D then the former must be wrong. I have said before and I say it in cases again and again that claimants will struggle to overcome contemporaneous records.
Approximately one clinical negligence case in 20 that I see has an allegation that the records have either been altered, replaced or were written after the event. This case is a reminder that in the absence of any significant evidence that that is right, there remains an almost insurmountable obstacle in the face of contemporaneous records that support a defendant.
The lesson for both claimants and clinicians is clear. The latter scrimp on their notes at their peril. If the former think that they can overcome such notes simply by saying that they remember it differently then a nasty surprise lies in store.
The case is also one where the notion that getting something wrong once is more likely than getting something wrong repeatedly. That is superficially attractive but I have seen hundreds of cases where persistent failure demonstrably occurred. When a clinician forms a view of something, it is unlikely to change easily: persistent failure can be a persistent problem.