The patient, a nine-month old boy had been unwell and feverish for three weeks. During this period he was seen on a number of occasions by the GP, an MDU member, who prescribed two courses of penicillin. The history from here onwards is difficult to establish accurately as the member had died and his clinical records had been destroyed. According to the mother, the baby failed to respond to the antibiotic and she became concerned because the child's eyes were fixed and staring. She visited the GP again and the GP did not examine the child but looked at him and told the mother to take him home and continue the existing medication.
Overnight the baby's condition deteriorated further and the following morning he was listless and unable to support his head. The mother returned to the GP who repeated his advice of the previous day. What is documented is that later that day the child was admitted to hospital suffering from acute meningococcal meningitis and fitting. The hospital notes make no record of the child having been seen by his GP that day. The baby recovered but is now seriously disabled and dependent on the constant care of his parents.
Despite the length of time that had elapsed since the events in question, the death of the GP and the loss of the notes, the MDU felt that the case should be defended.
No claim was brought until nine years after these events when it was alleged that the GP had failed to diagnose meningitis and failed to admit the infant to hospital either on the day before he actually went into hospital or earlier on the day that he was admitted.
Despite the lack of evidence the case proceeded to trial. The judge dismissed the case against the MDU member because of the lack of contemporaneous records. In his summing up he said:
'The decision has been based on the evidence taken as a whole; on my impression of the witnesses and the undoubted effect that the passage of time has had on the ability of anybody without a crystal ball to determine the true facts.'
Members should be aware that this was an unusual case. The Judge decided that the fact that the member was dead and the records were missing meant that he was unable to come to a fair conclusion on the facts of the case.
In different circumstances a Judge is likely to be very critical of the loss of records and this may prejudice the ability of the MDU to successfully defend a member
This page was correct at publication on 01/10/2012. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.