Kennedy v Malhotra [2024] NSWSC 576 highlights the importance of maintaining good medical records.
The plaintiff, aged 42, suffered from cervical cancer and had a limited life expectancy. The hearing was expedited, and orders were made for the parties to exchange evidentiary statements before the hearing which was heard over 5 days in April 2024. His Honour Justice Cavanagh delivered judgment on 15 May 2024.
Essentially the plaintiff alleged that her general practitioner did not advise or inform her of the necessity of undertaking preventative screening in the nature of Pap smears or cervical screening tests (CST).
The medical practice where the defendant had consulted the plaintiff on 28 occasions between 2014 and 2019 had been shut down and the defendant’s records were not available to her when she completed her evidentiary statement. The medical records were subsequently produced in answer to a subpoena addressed to an IT company which had been previously engaged by the medical practice.
The defendant had a usual practice when discussing a Pap smear with a patient being:
- ask when the patient last had a Pap smear;
- if the patient did not know or have not advise them of the need for a Pap smear; and
- advise them to have a Pap smear if they had not had one in the last two years.
The defendant’s expert general practitioner stated that this was ‘textbook’.
The plaintiff’s case was essentially that she raised the question of Pap smears at a number of consultations and that the defendant refused to perform or recommend them on the basis that the plaintiff had not been sexually active.
The judge found that:
- the plaintiff was an educated and intelligent woman;
- the defendant was a considered and credible witness and was an experienced general practitioner with expertise in women’s health;
- it was not part of the plaintiff’s case that the defendant had altered the medical records or even that she had mis recorded things; and
- nothing emerged what might tend to suggest that the defendant’s notes were generally inaccurate or that the defendant had failed to record visits from the plaintiff or failed to record discussions or consultations at different times.
In relation to causation the judge found that, for reasons personal to the plaintiff, she did not want to undergo the screening or decided not to undergo the screening. Even if the defendant had reminded the plaintiff more promptly in 2018 or 2019 that she should be having cervical screening, the plaintiff had not established that the outcome would have been different.
As a result, the plaintiff’s case failed.
The case again illustrates the importance of good medical records that enable a medical practitioner to give evidence of his/her usual practice. It also highlights the importance of medical records being downloaded and capable of retrieval if required subsequently.
This article was written by Scott Chapman, Partner, and Don Munro, Consultant.
