Ismail v Joyce [2020] EWHC 3453 (QB) 

16th December 2020
Key Issues
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Ismail considered the question of how to resolve discrepancies where the Claimant’s medical records diverge from her narrative. Ismail stresses that the more compelling contemporaneous evidence a Claimant can adduce to support her version of events, the likelier it is that a Court will find in the Claimant’s favour.


Ismail concerned a claim against a GP for a failure to take appropriate steps in response to the Claimant’s reported symptoms. The Claimant alleged that when she saw the GP on 10 August 2011, he should have referred her for a chest x-ray, as there were indications that she may be suffering from Tuberculosis (TB). It was the Claimant’s case that had the GP referred her for the chest x-ray proximately to the consultation on 10 August 2011, the TB would have been diagnosed at an earlier juncture leading to a better medical prognosis. In actuality, the Claimant suffered residual brain damage and spinal cord damage.

The scope of the hearing related to breach of duty, with a specific focus on the consultation on 10 August 2011, at which the Claimant was accompanied by her sister, who also gave evidence. The Claimant alleged that during the consultation, she explained to the GP that she had been coughing for three weeks, having night sweats and coughing specs of blood. The Defendant GP had no particular recollection of the consultation and had to rely on the consultation notes as a record of what was discussed. The record contained reference to coughing and stated that the Claimant was “sweaty at night” but did not contain any reference to her coughing up specs of blood. The main symptoms of TB are weight loss, lack of appetite, fever, night sweats, extreme tiredness, and fatigue.

Following the consultation on 10 August 2011, the Defendant prescribed the Claimant antibiotics for a five-day period. However, her condition did not improve and on 30 August 2011, she was admitted to hospital complaining of headaches and shivering. On 1 September 2011, she was provisionally diagnosed with TB, before being discharged home with the intention that she should return shortly for a bronchoscopy. However, by 5 September 2011, her condition had further deteriorated, and she was readmitted to hospital.


Given the importance of findings of fact to the case, Freedman J noted that any analysis of medical records should be scrutinised with the contextual limitations of such records in mind. Freedman J noted the absence of recorded complaint of a particular symptom doesn’t entail that said symptom wasn’t raised, that it is human nature for patients to give incomplete accounts of symptoms with much depending on question framing, and that patients habitually stress symptoms which are generating the most bother.

In respect of the Claimant (and her sister’s) recollection that she had informed the GP during the consultation that there were two occasions on which she had coughed up specs of blood in her saliva, the Court found that, on the balance of probabilities, this was not correct. The Court relied upon the Defendant’s evidence of his normal practice, which, if the Claimant had reported a cough, would have been to ask whether the cough was productive and, if so, to ask further questions about the colour of any sputum produced and the frequency of the occurrence – all of which the Defendant said would have been recorded.

Freedman J found that the Claimant had mentioned she was “sweaty at night”, as recorded in the consultation note. He also found that the Claimant had in fact been suffering from “drenching night sweats” at this time and either this was what she would have reported to her GP during the consultation or, as accepted by the Defendant, if she had simply reported being sweaty at night, it would have been incumbent upon the Defendant to ask for further details, which would have led him to discover that the Claimant was in fact suffering from night sweats.

Proper practice following a report of night sweats, combined with the Claimant’s history of a cough lasting 3 to 4 weeks and the fact that the incidence of TB in the Claimant’s area is higher than other parts of the country, would have been to arrange an x-ray immediately, or within 7 days of the consultation if the Claimant’s symptoms did not improve with antibiotics. The Defendant’s failure to do this constituted a breach of duty and the claim succeeded on the basis that, had the Claimant been referred for an x-ray within this time frame, the TB would have been detected sooner.

Our View

Carin Hunt, of Outer Temple’s clinical negligence team, commented as follows:

This case gives practitioners helpful insight into the Court’s approach to determining contested facts in respect of what was or was not said during a medical consultation. While it is always a challenge to persuade the Court that contemporaneous medical records are inaccurate or contain a significant omission, this case reconfirms that although the starting point will be an assumption that those records are accurate, the Court will look to the context and circumstances of the  case as a whole in order to come to view on how complete the written record is. It also demonstrates how influential a clinician’s account of his or her ‘usual practice’ will be when ‘filling the gaps’ in a medical record.

Freedman J also gives valuable guidance on assessing witness evidence in respect of events that have occurred some time ago. He was clear that just because a witness’s evidence on one point is rejected by the Court, that witness’s evidence as a whole is not rendered unreliable.

The recent case of Failes v Oxford University Hospitals NHS Trust also addresses the issue of establishing facts in clinical negligence cases and can be found here.

Read the Judgment

The full judgment can be read here.

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