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“The whole truth and nothing but the truth”?
by
Emma-Jane Hobbs
As Brooke LJ recognised in Kearsley v Klarfeld [2005] EWCA Civ 1510, “a distressing feature of contemporary England is a willingness on the part of many people to put forward bogus claims for damages”. In the current climate and at a time when the credibility of Claimants is being impugned routinely up and down the country in claims for personal injury arising out of low velocity impacts between two motor vehicles where it is alleged that the Claimant is fabricating or exaggerating his or her injury, parties are looking increasingly to Claimants’ medical records in attempt to ascertain the ‘truth’ of the matter (i.e. to find ‘evidence’, corroborative or otherwise, to support or undermine the claim / injury).
What is the evidential status of medical records in personal injury cases? Take the example of a claim involving an alleged breach of section 41 of the Highways Act 1980 where the young Claimant’s case is that he tripped, fell and broke his leg as a consequence of a dangerous pothole in the road. Is a record in the Claimant’s contemporaneous hospital notes that the injury occurred when he fell from a wall to be taken as evidence of the making by the Claimant of the statement recorded and, as such, to be considered fatal to his claim? The answer is ‘no’ despite widespread assumption that medical records are ‘evidence’, without analysis of what if anything they prove. Assuming the Defendant can prove that the Claimant made the relevant statement, its evidential status is simply as material that can be used to discredit the Claimant.
In a recent Court of Appeal case, Denton Hall Legal Services & Ors v Kathryn Hilary Fifield [2006] EWCA Civ 169, Buxton LJ felt the need to issue an obiter reminder about the evidential status of such material due to problems that arose therein as a consequence of improper use of the Claimant’s medical records.
Denton Hall concerned a secretary’s upper limb disorder, sustained allegedly as a consequence of her employers’ breach of statutory duty. A fundamental issue was when the more serious upper limb symptoms of which the Claimant complained had first manifested. The Defendant relied upon contemporaneous medical notes said to be inconsistent with the Claimant’s pleaded case and suggested that such material was evidential in its own right.
Buxton LJ made it clear that what a doctor writes down as having been told him by the patient, as opposed to the opinion that he expresses on the basis of those statements, is not at that stage evidence of the making of the statement that he recorded. Rather where, as in Denton Hall, the record was said to contradict the evidence as to fact given by the patient, the record was of a previous inconsistent statement allegedly made by the patient. As such the record itself is hearsay.
In those circumstances it might be possible to prove as evidence that the Claimant did in fact speak as alleged in one of two ways. The first and most obvious way is that, if the statement is put to the witness, he may admit to having made it. Alternatively, if he does not distinctly so admit the statement it may be proved under section 4 of the Criminal Procedure Act 1865. The second is pursuant to section 6(5) of the Civil Evidence Act 1995. Those provisions do not prevent the statement being proved as hearsay evidence under section 1 of the Act. If the Court concludes that an inconsistent statement (or statements) has been made, that goes only to the credibility of the witness, the statement itself cannot be treated as evidence of its contents.
The problem in Denton Hall, as in so many other cases, was that the Claimant’s medical records were adduced as evidence without any analysis of what, if anything, they proved and were put forward as reasons why the judge should have disbelieved the Claimant without the records having been put to her at the trial.
In order to obviate such difficulties in the future and to ensure that factual issues in medical cases are economically and efficiently tried, Lord Justice Buxton set down the following procedure:
- A party who seeks to contradict a factually pleaded case on the basis of medical records or reports should indicate that intention in advance, either by amendment of his pleadings or by informal notice;
- Then, the opposite party must indicate the extent to which they take objection to the accuracy of the records;
- When the area of dispute is identified, a decision will have to be taken as to whether the records need to be formally proved by either of the means referred to above.
Parties should beware. If the foregoing precautions are not taken before trial, the trial judge is likely to be reluctant to permit reference to reports of the patient’s statements in the medical records for the purpose of contradicting their evidence. Buxton LJ made it clear that any such reluctance was unlikely to be criticized by the Court of Appeal. On the other side of the coin, if there is unreasonable failure to admit that such statements were made, to the extent that it is necessary to call busy doctors in order to formally prove them, then that failure of co-operation is likely to be penalized, “possibly severely”, in costs.
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