The making of appropriate contemporaneous notes in medical records is best practice for clinical care, but also to facilitate the defence of a claim should an adverse event occur.

The facts

The plaintiff, Mrs Smythe consulted Dr Burgman between 15 October 2010 and March 2011. On 14 March 2011 Mrs Smythe complained of pain in her left foot. Dr Burgman diagnosed infection and prescribed antibiotics. Mrs Smythe returned on 22 March 2011 with two complaints: pinkness and tenderness in the left foot, and a perianal abscess. Dr Burgman prescribed another course of antibiotics. On 29 March 2011, Mrs Smythe wanted to see Dr Burgman again for pain in her left foot but she saw her husband’s general practitioner Dr Follent instead as Dr Burgman was unavailable. On 30 March 2011 Dr Follent referred Mrs Smythe to Tweed Hospital where an ultrasound revealed an arterial clot in the left leg. On 20 April 2011 the left leg was amputated below the knee.

The issues

The central question was whether Dr Burgman ought to have diagnosed arterial ischemia on 14 March 2011 even though it had an atypical presentation. It was necessary to establish whether or not Dr Burgman had felt the pulses in the feet on the first examination on 14 March 2011. There was no notation about the pulses in the clinical notes. Dr Burgman said she did check the pulses and found them normal, but did not write it down. Mrs Smythe alleged her pulses were not examined. Dr Follent who examined Mrs Smythe on 30 March 2011 found abnormal pulses and referred Mrs Smythe to Tweed Hospital. 

The findings

Dr Burgman owed a duty of care to Mrs Smythe on 14 March 2011 to consider arterial ischemia amongst other diagnoses. In order to confirm or exclude that diagnosis she was required to take Mrs Smythe’s dorsalis pedis pulse. If the pulse was abnormal then Dr Burgman would not have been able to exclude the diagnosis without further investigation. If the pulse was normal then Dr Burgman was justified in excluding the diagnosis (which she did) and proceeding to an alternative diagnosis of infection. The Court found Dr Burgman had considered arterio-ischemia and reasonably rejected it after having taken Mrs Smythe’s dorsalis pedis pulses on both sides and found them to be normal on 14 March 2011.

Notwithstanding the absence of a note of it in the clinical notes, the Court accepted expert opinion and Dr Burgman’s oral evidence that she had examined the pulses. Mrs Smythe therefore failed to establish a breach of duty by Dr Burgman, and lost her case. The causation issue in the case was whether amputation would or could have been avoided if ischemia was diagnosed at the first examination on 14 March 2011. The Court found there was insufficient evidence to assess the value of the chance of avoiding amputation if an earlier diagnosis had been made. 

Credit

There were competing versions of what occurred at the consultation on 14 March 2011, and Dr Burgman did not have relevant notes to confirm her assertions. Unfortunately for Mrs Smythe the Court did not accept her evidence in material respects. The Court preferred the evidence of Dr Burgman about the pulses in light of the timing of various versions of what had occurred given by the plaintiff, compared to contemporaneous business records including earlier versions of Mrs Smythe’s written statements provided to her solicitors. 

What can be learned from this case?

Practitioners should be aware of the importance of making a note of all significant findings, whether positive or negative. In this case the general practitioner had taken a note of abnormal findings but not of the normal findings which were relevant to excluding a differential diagnosis that was low on her list, considering the whole clinical picture. In this instance the general practitioner was able to defend the claim. In large measure this was because of adverse findings on the credibility of the plaintiff. In many cases the plaintiff is given the benefit of the doubt, and will succeed. A simple message for practitioners to take from this case is always to record their findings on the signs relevant to each differential diagnosis. In particular, if examining pedal pulses, make a note of it, whether they are abnormal or normal. 

Holman Webb acted for Dr Burgman in this matter in the Supreme Court of NSW.

This article was included in the recent Holman Webb Health Law Bulletin.  To read other articles in the September edition of the bulletin, please click here.