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The success or failure of clinical negligence claims often depends on the reliability of a patient's memory of what was said or done during medical consultations that are many years in the past. In a case on point, the High Court accepted a mother's account of a concern she expressed at an antenatal appointment in 2004.
The mother's son was born four days after the appointment, having suffered chronic partial oxygen starvation and brain damage. Damages were sought on his behalf against an NHS trust on the basis that, during the appointment, his mother had expressed concern to a doctor about reduced foetal movement.
The trust accepted that, if the mother had indeed raised such a concern, the doctor was negligent in failing to act upon it. In denying that she had done so, however, it pointed to alleged inconsistencies between her memory of what she told the doctor and contemporaneous medical records. Unsurprisingly, given the lapse of time, the doctor herself had no independent recollection of the appointment.
Ruling on the matter, the Court noted that the mother had given a clear account of the appointment, which took place on her wedding anniversary. Her memory that she had raised a concern about reduced foetal movement, and been reassured by the doctor, was substantially supported by other evidence.
A brief entry in the medical notes in which the doctor recorded that foetal movement had been detected did not in itself contradict the mother's recollection. The Court found on the balance of probabilities that the mother did raise her concern and that a breach of duty on the doctor's part was therefore established. Other issues in the case would be the subject of a further hearing, if not agreed.