Opinion
How much weight do we give to clinical notes in compensation matters?
12th Jan 2023
A recent case out of the ACT Supreme Court. Maher v Russell [2022] ACTSC 297, contained an interesting passage regarding the notetaking of general practitioners and the weight that ought to be given (or not given) to those notes in a personal injury matter.
To paint the picture, on 16 October 2017, the plaintiff, Ms Maher, was involved in a motor vehicle accident: her vehicle was hit while stationary at a set of traffic lights by Ms Russell’s vehicle. Ms Maher had previously suffered from fibromyalgia, which she alleged was predominantly asymptomatic at the time of the accident but became symptomatic post-accident as a result of the trauma and her psychological distress. Ms Maher commenced proceedings against Ms Russell and the NRMA for damages as a result of the injuries sustained in the accident. Liability was conceded by the defendants, with quantum the only issue in dispute.
Ms Maher was diagnosed with fibromyalgia in 2010. She initially had a very intense onset of symptoms, after which she generally only suffered minor flare-ups of the condition. Following the accident, however, Ms Maher alleged she experienced ‘almost … never-ending flare-ups of her fibromyalgia aches and pains’ (at [19]). In cross-examination, she accepted that she experienced flare-ups as a result of psychological or emotional stressors, which was supported by the medical experts.
Ms Maher’s treating general practitioner was Dr Ali. The defendants submitted that Dr Ali’s notes only referred to Ms Maher suffering flare-ups of her fibromyalgia on two occasions since the accident. On cross-examination, Dr Ali was questioned regarding her notetaking practices, particularly regarding the lack of notes detailing flare-ups of Ms Maher’s fibromyalgia in the time since the accident. Dr Ali stated:
‘Sometimes a patient comes [in] and they have a flare-up of their chronic condition which they are managing, but their actual issue for presenting is something completely different. So in that case, whatever the predominant issue is [what] would be noted, and there may or may not be a comment at the time that there is a current flare-up of the chronic condition, because that is something the patient lives with and it depends on the severity of the flare-up. So whatever the predominant issue is at the time, definitely that is noted. Side issues may or may not be noted at the time.
Dr Ali went on to state:
‘“Predominant reason” does not mean that other issues become irrelevant. I want to clarify that because sometimes patients with chronic debilitating conditions have actually another issue that they need to discuss. It doesn't mean their pain is less severe because they have some other condition that needs attention at that time. So if it's a side issue, it's still relevant if it's affecting their quality of life … If there are multiple other things happening in the life of the patient that they are not discussing at that time, it may or may not be noted. Those issues are still there and very real for the patient’ (at [54]).
Justice Loukas-Karlsson noted the warnings given in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2] as to the appropriate treatment of clinical notes. In both cases, Judge Basten JA had cautioned that clinical notes:
- are usually taken in furtherance of a purpose different to that for which they are used in proceedings;
- do not contain the questions of the health professional that elucidated the patient’s reply;
- are likely to be only a summary rather than a verbatim recording; and
- are affected by a range of factors, including fluency of language and the patient’s understanding of the purpose of the questioning.
Justice Loukas-Karlsson also noted the warning given by McWilliam AJ in Austen v Tran [2022] ACTSC 114:
‘a cautious approach has been taken not to elevate clinical records to a higher status factually than other evidence given in the proceeding’ (at [8]).
Ultimately, Loukas-Karlsson J accepted the evidence of Dr Ali that Ms Maher had suffered from continuing symptoms from her fibromyalgia since the accident, despite not being evidenced in Dr Ali’s clinical notes.
This case highlights the care we personal injury practitioners must exercise not to place clinical records and notes on a pedestal. These notes can be influenced by many factors and must be considered with caution in light of all other evidence given in proceedings. This is particularly the case with ‘chronic’ conditions, which may be left out of clinical notes in lieu of new issues. This should not be taken to downplay the severity of a chronic condition and the impact it has on a claimant’s life, but rather reflects that there are other issues that may bring that person to the doctor on any given day.
This is an edited version of an article first published by Travis Schultz & Partners
The ALA thanks Rachel Last for this contribution.
Rachel Last is Senior Associate at Travis Schultz & Partners, representing clients in matters involving all areas of compensation law. Rachel prides herself on attention to detail, dedication and an empathetic nature to support her clients throughout their claims process.
The views and opinions expressed in this article are the authors’ and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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