A timely reminder for medical practitioners on why good clinical notes are essential, particularly in defending a claim in medical negligence
In this edition, we discuss two recent New South Wales Supreme Court decisions which reinforce the importance of medical practitioners maintaining clear, concise and contemporaneous clinical notes, and how doing so can assist in defending a medical negligence claim.
In Kennedy v Malhotra, Ms Kennedy (the plaintiff) visited her GP, Dr Malhotra, (the defendant) six times between April 2014 and December 2019. During each visit, Dr Malhotra advised Ms Kennedy to book a cervical screening test. At the last consultation in December 2019, an attempt to perform a Pap Smear was unsuccessful due to pain, and Dr Malhotra referred Ms Kennedy to another clinic, which she did not attend.
Ms Kennedy later developed cervical cancer and claimed Dr Malhotra failed to advise her on the need for cervical screening or to follow up, remind her or arrange for her to do so. The court held in favor of Dr Malhotra, citing her expertise in women’s health and her consistent clinical notes which contradicted Ms Kennedy’s inconsistent accounts. The court concluded that even if Dr Malhotra had reminded Ms Kennedy more promptly, the outcome would have remained unchanged.
In Polsen v Harrison, Ms Polsen (the plaintiff) underwent gastric sleeve surgery performed by Dr Harrison (the defendant). She experienced a complex recovery and alleged that Dr Harrison was negligent in recommending the surgery at all, or at least in not delaying the surgery until resolution of her risk factors of a poor outcome. In addition, it was claimed that Dr Harrison’s warning of the risks was inadequate and that he had caused a gastric leak as a consequence of poor surgical technique.
Dr Harrison’s detailed clinical notes played a crucial role in the court’s decision to find in his favour as they demonstrated his proper communication of surgery risks and appropriate management of complications. Further, Ms Polsen was determined to have the surgery irrespective of the risks. Dr Harrison’s surgical approach was held to be appropriate, and Ms Polsen was considered an appropriate candidate for surgery.
Learning points for medical practitioners
Medical record keeping is often given a low priority by medical practitioners in busy healthcare settings. However, accurate, clear concise and contemporaneous clinical notes are vital in litigation, often carrying more weight than patient testimony, as demonstrated by the cases above.
Clinical notes provide a permanent and contemporaneous account of the care a patient has received and can provide evidence of patient awareness and understanding of risks. Additionally, notes and Patient Information Leaflets can be used to establish informed consent.
It is vital that time is spent completing detailed and accurate clinical notes as they can be fundamental in successfully defending a medical negligence claim.
More information
If you have any questions or would like further information regarding this article, please contact:
| Harriet Frost Special Counsel M: 0400 645 418 E: hfrost@pageseager.com.au |
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| Lilly Rosenberg Associate T: (03) 6235 5116 E: lrosenberg@pageseager.com.au |
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Published: 26 July 2024
