oct ewj 24 online - Flipbook - Page 62
Do the Medical Records Always
Speak the Truth? It Seems Not…
Dr James Piers - www.anthonygold.co.uk
Or at least that is what the judge found in the recent
case of Biggadike [Biggadike -v- (1) El Farra; and (2)
El-Neil [2024] EWHC 1688 (KB)].
2018 she undertook a further tape excision and
colposuspension procedure. The colposuspension was
intended to address ongoing symptoms of urinary
stress incontinence. Interestingly, a complication of
that procedure can be that urinary stress incontinence
is increased. Unfortunately, that is what happened in
this case.
Case Overview
This is a clinical negligence case arising from Ms
Biggadike’s treatment with tape / mesh for urinary
stress incontinence.
The claimant alleged that she should never have
undergone the colposuspension procedure, because
the indications for such surgery were absent. The
claimant’s position was that she was not suffering with
urinary stress incontinence at that time and thus the
procedure should never have been offered. Had she
not had the colposuspension procedure, then she
would have avoided her ongoing symptoms of urinary
stress incontinence; symptoms which had resolved after
implantation of the tape by the first defendant.
Briefly, the claim was brought against two defendant
urogynaecological surgeons. The first defendant had
implanted the tape and the second defendant had
undertaken two surgical procedures to remove it.
The claim against the first defendant related to
pre-operative work-up and counselling and, specifically, an alleged failure to advise the claimant that nonoperative treatment may improve her stress
incontinence, in particular, pelvic floor exercises. The
claimant also alleged that informed consent had not
been properly obtained prior to the implantation of
tape and specifically in relation to the particular type
of tape and tape procedure that she would undergo.
Much turned on the accuracy of the medical records
kept by the second defendant in conjunction with her
factual witness evidence.
In this case, the second defendant had disclosed her
medical records on two occasions. The first disclosure
took place in February 2019 at a time when the second
defendant was not a party to the case.
Much of the case against the first defendant turned
on the Court’s finding of fact rather than expert opinion as to the standard of care provided. For example,
the claimant alleged that she had not been informed
about the option of pelvic floor exercises over surgery,
whereas the first defendant averred that such information and advice had been provided.
The second disclosure took place in August 2022 by
which time, the second defendant had become a party
to the case. Interestingly, the tranche of records that
was disclosed in August 2022 had been annotated in
a number of places.
This led to a detailed examination of the factual
matrix, taking into consideration the witness statements, the medical records and the oral evidence
given at trial by the factual witnesses, which in some
respects deviated significantly from that previously set
out in witness statements.
The claimant had asked the second defendant to
clarify how those annotations had come about and
after some dispute, the second defendant was ordered
to provide an explanation. In complying with the
Order, the second defendant provided a supplementary factual witness statement in which she indicated
that any annotations had been made “near contemporaneously” and simply as an aide memoire to her.
It is not clear specifically for what purpose the aide
memoire was required.
Court’s Findings
Ultimately, the judge found that the first defendant
had provided proper pre-operative work-up, counselling and information to the claimant prior to
surgery to enable her to make an informed decision
and thus the claimant’s case against the first defendant
failed.
Judge’s Conclusion on the Second Defendant’s
Records
One of those amendments related to urodynamic
studies performed on 6 July 2018, around 3 weeks
prior to the second operation on 28 July 2018 (the colposuspension and removal of further tape). The urodynamic study report indicated that there was no
complaint of stress incontinence by the claimant.
However, an annotation made by the second defendant (seemingly added after the second defendant
had been brought into the case) indicated that there
had been a discussion with the doctor performing the
urodynamic studies and that there had been some
Unfortunately for the second defendant this careful
examination of the factual evidence led to a finding
that, not only were the second defendant’s medical
records inaccurate, but they were probably also untruthful.
The case against the second defendant focused on the
two operations that had been performed by her to address complications of the tape implantation. In
March 2018, she had performed an operation to excise the middle portion of the tape. Later, on 28 July
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