Tai v Hatzistavrou [1999] NSWCA 306

Medico-legal claims often involve a dispute of the facts which is why clear and accurate notes are essential. Where there is no supporting documentation, the patient’s recollection may be preferred to that of the practitioner, particularly where the practitioner is unable to fully recall the event or the patient. And this happened in the case of Tai v Hatzistavrou.

The claim was an allegation of delay in diagnosing ovarian cancer. The defendant, gynaecologist Dr Tai, sent a request to the local hospital for the patient to be admitted for investigation of vaginal bleeding, but the request went astray, and the patient was not admitted. She was later diagnosed with metastatic ovarian cancer.

At the trial, Dr Tai gave evidence that he had asked the patient to contact him within a few months if she had not received notification of her admission date; however, there was no record of this in the medical record.

The court noted “Dr Tai fairly and honestly admitted … he had no recollection, apart from what was written in his notes, of any particular conversation he may have had with the plaintiff”. (p12) He stated he saw up to 30 patients in one session, for approximately 15 minutes each. And whilst he relied on his notes, they were very brief and he did not note all that he did or said.

He gave evidence as to his usual practice. But the court preferred the patient’s version of events, that she had not been advised to follow up the referral within a few months, and judgment was entered against the gynaecologist.

Inquest into the death of Shona Hookey: State Coroner’s Court of New South Wales (December 2016)

In the Shona Hookey inquest, the Coroner noted poor and untimely record keeping as one of many errors and system failures involved in the death. The Coroner’s report stated that “Observations of vital signs and progress notes are an emergency department’s systemic short-term memory” and that “Taking and recording observations of vital signs is probably the most important of the records that must be kept up-to-date, but progress notes are almost equally important. Progress notes are slices in time that enable clinicians to monitor patients as they improve, stabilise or deteriorate.” The report highlighted that “Without a baseline against which these things can be checked, clinicians are working half-blindly.” Then finally in his conclusion the coroner stated that “It is at times when the pressure is greatest, and the danger of cognitive overload is highest, that good record-keeping is most important.” (p37)

Sevdalis v Director of Professional Services Review [2017] FCAFC 9

In 2015 a GP, Dr Sevdalis, was found by a Professional Services Review Committee to have failed to keep contemporaneous records when rendering services billed to Medicare. This was held to be inappropriate practice and the GP was ordered to repay over $450,000 and was disqualified from rendering Medicare Benefits Schedule services for two years.

Dr Sevdalis maintained that he had made handwritten notes which were subsequently transferred to an electronic record. The Committee held that the handwritten documents tendered in evidence were not contemporaneous and were “recent fabrications”.

Dr Sevdalis appealed to the Federal Court and the Full Bench of the Federal Court but was unsuccessful. The Court found that the standard of timeliness for record keeping had not been met as the notes would not have been available to another doctor. As this amounted to inappropriate practice, he was not entitled to be paid Medicare benefits for those services.