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No notes, no leg to stand on

01 February 2004

Ms Q was a young shop worker living in the south of England. She had been experiencing low back pain for several months and it had not responded to conservative treatment. The results of an x-ray had been inconclusive and, rather than wait to have further investigations as an NHS patient, Ms Q asked her GP to refer her to an orthopaedic surgeon as a private patient.

She saw Mr K, who arranged for an MRI scan. This showed ‘a moderate sized left para-central disc prolapse indenting the theca and displacing the left L5/S1 root’.

This short radiologist’s report is the only existing document relating to the immediate preoperative period. Mr K’s private practice notes were destroyed and there is no copy of the GP’s referral letter in the GP’s notes.

Mr K apparently recommended surgery; Ms Q could not afford to pay for this privately, so her GP referred her again to Mr K – this time as an NHS patient. Again, there are no notes relating to the NHS consultation as it seems that Mr K made no written record of it.

Ms Q was admitted to an NHS hospital for surgery. The operation, a discectomy at L5/S1, was performed by Mr K’s registrar, Dr G. Although the operation was unremarkable, Ms Q subsequently experienced pain, pins and needles, numbness and muscle spasms in her mid back and legs.

Investigations failed to identify a clear cause for these persisting symptoms and efforts to treat them were largely unsuccessful; spinal epidurals and a nerve root block failed to alleviate the pain. Ms Q’s claim against Mr K alleged negligence in that the surgery was not indicated and Mr K had not warned Ms Q of the risks and the chances of success.

She also alleged assault because she had only consented to the operation on the understanding that Mr K would perform it.

This case all came down to ‘ifs’ and ‘supposings’. There was very little for the experts involved to go on. Some aspects of Ms Q’s version of events were hard to credit – for instance, she claimed that Mr K had given her a 100% guarantee that the surgery would be successful – but in the absence of any hard evidence there was no way of knowing for sure what was actually said.

We had no option but to settle the claim.

Learning points

The absence of notes made it impossible to defend this claim. It is not only essential to record patient encounters, but the notes themselves must be kept for at least seven years after the last consultation (or, in the case of a minor, after the patient reaches his/her age of majority). The notes for mentally impaired patients should be kept indefinitely. Ideally, notes should be kept indefinitely if this is at all feasible. Not all countries’ health departments issue guidance on retention periods, but those issued by the NHS in the UK could be adopted in the absence of local guidelines. They can be found on the Department of Health website.

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