When the Medical Records Are Silent

Clinical negligence often requires courts to reconstruct events that took place months or even years earlier. When recollections have faded and medical records contain limited detail, Judges must determine what most likely occurred from the available evidence.

The High Court decision in Shaheen & Anor v Daish [2025] provides a useful illustration of how courts approach this situation and highlights several practical lessons for clinicians and expert witnesses involved in litigation.

The case concerned a consultation between the deceased patient and his GP. The central issue was whether the GP had advised the patient to attend a walk-in radiology department for a chest X-ray. The claimant alleged that this advice had never been given. The defence maintained that it would normally have been provided as part of the GP’s usual practice when managing patients presenting with the relevant symptoms.

Importantly, neither party had a clear recollection of the consultation and the contemporaneous medical record did not contain an entry confirming that the patient had been advised to attend for imaging.

Determining the Preliminary Issues

The court was therefore asked to determine three preliminary issues before the case proceeded further:

1. Whether the GP failed to inform the patient that a chest X-ray was required.
2. If the patient had been told, whether he would have attended for the investigation.
3. Whether the patient was contributorily negligent.

The court concluded that the patient had not been told to attend for a chest X-ray, that he would have attended if properly advised, and that there was no contributory negligence.

The Role of “Usual Practice” Evidence

One notable aspect of the judgment is the court’s treatment of evidence about a clinician’s usual practice.

Barrister Martin Lanchester, commenting on the judgment, noted that the case offers: “an interesting view of how the court can approach a GP’s evidence about their ‘usual practice’… where neither party has a direct recollection and the medical note is silent.”

In many clinical negligence cases, doctors explain that although they cannot recall the specific consultation, they would normally follow a particular process when managing a patient with certain symptoms. Such evidence may help the court understand typical clinical practice, but it is rarely decisive on its own.

“Usual practice evidence may assist the court, but it cannot replace clear contemporaneous documentation.”

Judges will consider this evidence alongside the contemporaneous records, the surrounding circumstances and the inherent probabilities of what most likely occurred.

Lessons for Clinicians and Experts

For clinicians and expert witnesses, the case reinforces several familiar themes.

First: contemporaneous records remain critical. Where an important step in patient management is not documented, the court may be left to determine what occurred based on incomplete evidence and competing interpretations.

Second: evidence of usual clinical practice cannot replace clear documentation of what actually happened during the consultation.

Finally: the judgment illustrates the high threshold for establishing contributory negligence where a patient has not attended for further investigation. Unless it can be shown that the patient clearly understood the importance of the investigation and chose not to pursue it, courts may be reluctant to attribute fault.

For experts preparing medico-legal reports, the case is a reminder that analysis should not rely solely on what a clinician says they would normally do. Reports should engage carefully with the contemporaneous records and the plausibility of the competing accounts when reconstructing events from consultations that may have taken place years earlier.