Lack of contemporaneous medical records and inconsistencies in evidence

18 February 2019

When medico-legal evidence from competing orthopaedic surgeons is consistent, practitioners generally expect that evidence to be accepted by the court in assessing damages.

The recent decision of Evans v Williams highlights what can happen at trial when medico-legal evidence is inconsistent with a plaintiff’s contemporaneous medical and employment records.

In issue

The extent to which the plaintiff’s earning capacity had been affected by the accident was the primary issue to be determined at trial.

The background

On 24 September 2015, then 51 year old kitchenhand, Ms Marie Evans (the plaintiff), was injured in a motor vehicle accident near Caboolture.

The plaintiff commenced proceedings in the District Court seeking damages for personal injuries including a musculo-ligamentous injury to her lumbar spine, bilateral hip injuries and a psychiatric injury arising as a result of the accident.

She alleged that she was forced to resign from her employment as a result of the accident, and that she had been limited in her capacity for alternative employment since.

The findings at trial

Expert evidence was given by two orthopaedic surgeons, Drs Shaw and Boys.

In the medico-legal reports commissioned before trial, the evidence of the surgeons was relatively consistent. Both assessed the plaintiff as suffering a 5% whole person impairment in respect of the lumbar spine However, when confronted with the plaintiff’s medical records at trial, both experts withdrew from their original opinions.

The plaintiff’s medical records revealed that:

  • she did not seek medical assistance for approximately 9 months post-accident;
  • she had not sought any physiotherapy or chiropractic treatment at the time of the trial;
  • her first reporting of lower back pain and hip pain post-accident, did not link the symptoms specifically to the motor vehicle accident; and
  • it was not until after she saw her solicitors that the first entry appeared in the plaintiff’s medical records drawing a causal link between the plaintiff’s symptoms of back pain and the motor vehicle accident.

Dr Shaw conceded that if, as the records suggested, the plaintiff’s back and hip pain arose 9 months after the accident, then it was “very, very unlikely” that the pain was linked to the accident.

Dr Boys also acknowledged there must be “a continuum of symptomatology” in order to establish that the accident caused the plaintiff’s injuries. Such continuum was missing from the plaintiff’s medical records.

It was common ground that the plaintiff resigned from her employment as a kitchenhand sometime following the accident and, subsequently, suffered loss of income.

The plaintiff claimed that her resignation was as a result of her injuries. A copy of the plaintiff’s letter of resignation was provided to the court. It included an explanation, which did not refer to the accident or its sequelae.

'It is with regrets that I had to hand in my resignation due to having to start work at 4:30 AM for a 6 AM start…The time allotted for the task is not sufficient without being under duress and which creates a stressful work environment not only for the staffs and this impact on the services we provide to the residents." The plaintiff suggested that these shortcomings in the evidence could be attributed to the fact that she ‘didn’t like going to doctors, taking medication or having needles’ and she avoided seeking treatment or informing her employer of her injuries in order to "maintain her job".'

Jarro DCJ rejected this explanation in light of ‘the overwhelming medical entries which predate the motor vehicle accident and indeed the negligible ones sometime after the accident’ and said that ‘the reason for her resignation is made abundantly clear in her letter of resignation.’

Assessment of the Plaintiff’s past and future economic loss

In assessing the plaintiff’s damages, Jarro DCJ had regard to the lack of contemporaneous reporting of symptomatology and the inconsistency between the plaintiff’s claim regarding her reduced earning capacity and letter of resignation.

Jarro DCJ did not accept that the plaintiff’s injuries were as significant as claimed. He also rejected claims that the plaintiff resigned from her employment because of her accident related injuries and that her earnings had been limited since.

In the circumstances, the plaintiff was awarded $103.00 for past economic loss, representing one day‘s lost income.[1] Jarro DCJ accepted that the plaintiff was entitled to an award for future economic loss, having regard to her age, work history and permanent impairment. He awarded a modest, global sum of $20,000.00 for this head of damage.

Implications for you

This decision highlights the importance of obtaining and thoroughly examining historical medical and employment records at an early stage in proceedings.

This material, which provides critical context to a plaintiff’s claim, must also be properly addressed and considered by medico-legal experts who will give evidence at trial.

Evans v Williams [2018] QDC 210

[1] The plaintiff had called in sick on one occasion, two days after the accident.

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