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Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) - Nicholas Dobbs, Temple Garden Chambers

17/09/21. Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) provides an instructive example of the difficulties in negligence claims of resolving conflict between witness evidence and contemporaneous medical notes, especially when memories of crucial conversations have faded.

In Sheard, the claimant claimed damages for personal injury and other losses arising out of alleged clinical negligence on the part of two defendants. The claim against the second defendant settled and so the claim proceeded only against the first defendant, a General Practitioner. Liability and causation were disputed. The claimant was seen by the first defendant, claiming that he presented with severe neck and shoulder pain, together with a two-week history of a pyrexial viral illness such that he should have been referred to hospital. He alleged that this failure amounted to a breach of duty of care. The dispute over liability rested significantly on what was said in that consultation about the symptoms and their duration. By the time of the hearing in April 2021, that consultation had taken place well over 6 years ago.

The notes made by the first defendant during the consultation were obviously of crucial importance. The critical passage stated, “for past 2 weeks, been unwell with viral illness – pyrexia and dizziness.” The claimant argued this was an unambiguous statement that at the time of the consultation, he had been, and still was, unwell with a pyrexial illness. The first defendant disputed this, arguing that that was not the correct interpretation of the note. He accepted however, that given the length of time which had passed since the consultation, he had no particular recollection of the claimant or of the consultation itself. The Judge was referred to the line of authority including Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm) and R (Dutta) v GMC [2020] EWHC 1974 (Admin). The principles derived from those cases are usefully summarised in some detail from paragraph 39 onwards in Sheard.

HHJ Robinson held that the evidence was “all one way apart from the interpretation put on the relevant note by the defendant”. His Honour was satisfied that: (1) the claimant told the defendant that for the past two weeks he had been unwell with a viral illness which, as interpreted by the defendant, included symptoms of pyrexia and dizziness; (2) the note made by the defendant accurately recorded that history; (3) the defendant knew at the time he made the note that he was recording the presence of an ongoing complaint. This interpretation was held to be consistent with Gestmin, and in particular, there was no need to “strain to interpret the ordinary and natural meaning of the recorded complaint”. The fact that the defendant recorded “no red flags of note” did not alter this; there were ‘red flags’, but the evidence as a whole tended to suggest that he failed to appreciate their presence.

Accordingly, the defendant was held to be in breach of his duty for failing to refer the claimant to hospital at the conclusion of the consultation. Practitioners may find both the summary of relevant principles at paragraph 39 useful and the application to this case insightful.

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