Publish date: 16 December 2022

How much weight do we give to clinical notes in compensation matters?  

The recent case out of the Supreme Court in the Australian Capital Territory. Maher v Russell [2022] ACTSC 297, contained a rather interesting passage regarding the notetaking of general practitioners and the weight which ought to be given (or not given) to those notes in a matter of personal injury.  

To paint the picture, the case details that on 16 October 2017, the Plaintiff, Ms Maher, was involved in a motor vehicle accident in the ACT. Ms Maher’s vehicle was hit whilst stationary at a set of traffic lights by Ms Russell’s vehicle. Ms Maher previously suffered from fibromyalgia, which she alleged was asymptomatic at the time of the accident. Ms Maher alleged her fibromyalgia had become symptomatic post-accident, as a result of the trauma but also due to her psychological distress. Ms Maher commenced proceedings against Ms Russell and NRMA for damages suffered as a result of the injuries sustained in the accident. Liability was conceded by the Defendants, with quantum the only issue in dispute.  

For further background, Ms Maher had been 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. She alleged she experienced no significant symptoms prior to the accident. Following the accident, however, Ms Maher alleged she experienced constant, never-ending flare-ups of her fibromyalgia. In cross-examination, she accepted that she experienced flare-ups as a result of psychological or emotional stressors, which was also 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 a flare-up 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. 

Judge 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. Therein, Judge Basten JA had cautioned that clinical notes: 

  1. are usually taken in furtherance of a purpose different to that for which they are used in proceedings; 
  1. do not contain the questions of the health professional that elucidated the patient’s reply; 
  1. are likely to be only a summary rather than a verbatim recording; and 
  1. are affected by a range of factors, including fluency of language and the patient’s understanding of the purpose of the questioning. 

Judge Loukas-Karlsson also noted the warning given by McWilliam AJ in Austen v Tran [2022] ACTSC 114 at [8]: 

“a cautious approach has been taken not to elevate clinical records to a higher status factually than other evidence given in the proceeding”.  

Ultimately, Judge Loukas-Karlsson 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 ongoing 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 often find themselves 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 there are other issues which may bring that person to the doctor’s on any given day. 

As published in Lawyers Weekly & Australian Lawyers Alliance.

Rachel Last
Rachel Last
Senior Associate
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