23 January 2015

Case Note: Surgeon’s defence to claim undermined by his own contemporaneous medical notes which on their face recorded a sequencing error in the operative steps.

The recent decision of the Court of Appeal in Mark Welch v Geoffrey Waterworth (Executor of the Estate of Marjorie Waterworth (Deceased)[2015] EWCA Civ 11 gives a new scope to the consideration of medical notes in the context of clinical negligence cases.

The Claimant had an arterial bypass in an earlier operation which had become blocked just below the arteries serving the kidneys. The surgeon decided that the bypass needing replacing. Shortly after the operation the Claimant suffered acute and irreversible kidney failure.

It was the Claimant's case, and as found by the trial judge, that the damage had been caused by what was termed a "sequencing error" in that the surgeon had clamped the aorta closed, across the material causing the blockage, before the aorta was cut and before the blockage was removed. The consequent result would have been that the waste material would have been squeezed up the aorta and into the renal arteries ("a toothpaste effect"). It was agreed that if this was indeed what had occurred it would have been negligent. The surgeon denied that this was what he had done and if he had done so he would have been alerted to it by a number of alarm bells. The surgeon had never raised the alarm bells in his own evidence, nor were they raised for discussion between the experts in their pre-trial meeting. They were first raised in cross examination.

The surgeon wrote 2 notes of the operation. The first shortly afterwards and the second later the same day at home. The use of the terms "aorta clamped" and "clamp applied" appearing where they did in the operative notes, and if recording the sequence of events chronologically, gave rise to the inference that the aorta was indeed clamped prematurely. The surgeon's evidence was that although he had written both notes it did not accurately record what he had done. He insisted that he had not closed the clamp at the moment indicated by the references in his own notes, but had merely positioned the clamp for speedy closely once blood flow was restored. The trial judge found that the surgeon did not realise that he had made the error and in doing so the trial judge had particular regard to the operative note (s). The trial judge referred to the operative note(s) indicating  that "a significant reason for accepting it [the manuscript note] as a reliable record of what [the surgeon] had done would be his failure, when writing it to recognise the significance of what he was recording and [of] its reproduction, albeit in a slightly different form in the later note".

In giving judgment in the Court of Appeal, McCombe LJ considered that the surgeon's oblivion as to what went on in the operation and afterwards amply justified a finding that his own operative notes provided "very significant evidence" of the clamping procedure that had actually occurred. There was adequate evidence for a finding that the surgeon would not have been susceptible to the "alarm bells" and the trial judge was entitled to fasten upon those aspects of the case which he found to be "reliable pointers" to what had actually occurred without trawling seriatim through every issue, side issue or speculation that arose on the evidence or in argument.


Whilst particular on its facts Welch confirms the importance to be attached to the consideration of contemporaneous  medical notes and the import that a trial judge can attach to their content in determining the chronology of disputed events.