Shaheen & Anor v Daish [2025] EWHC 3056 (KB) – silence in medical records

Background

The claim was brought by the wife and son of Mr Ajaz Ahmed, the Deceased, against Mr Ahmed’s GP. Mr Ahmed sadly died of lung cancer on 23 February 2023 at the age of 49.

The Claimants alleged that an opportunity to intervene and treat Mr Ahmed’s cancer was missed as a result of the negligence of his GP, Dr Daish, who saw the Claimant once at an appointment on 11 February 2019.

At the appointment, Dr Daish requested a chest x-ray using the Integrated Clinical Environment (‘ICE’) system. A request for an x-ray made via the ICE system was not acted on, until the patient attended a walk-in radiology department. There was no follow-up for the doctor or the patient.

The main factual dispute was whether Dr Daish had told Mr Ahmed that she had made the request and what he needed to do.

The record for the appointment confirmed that a chest x-ray was requested by Dr Daish, but did not contain an account of any exchange between Mr Ahmed and Dr Daish about that.

Unsurprisingly, Dr Daish had no recollection of the appointment and she relied upon her usual practice, which was that she orders an x-ray for a patient, she informs them that that is what she has done and the process they need to follow.

The chest x-ray request was in a separate document and completed 14 minutes after the appointment started. It appeared in the record of the consultation, because it is populated to the record automatically on completion of the request, rather than because Dr Daish typed it there.

The records showed that Mr Ahmed had already left the surgery to book a follow-up appointment by the time the x-ray request and supplementary prescription were finalised.

Mr Ahmed did not attend for the x-ray ordered by Dr Daish. His cancer was diagnosed following a chest x-ray in January 2020.

The parties agreed that, if an x-ray had been done, it would have shown an abnormality, a CT would have been recommended and this would have led to treatment for cancer. The parties disagreed on whether the treatment would have been successful and altered the progress of the cancer.

The issues

There were three preliminary issues before Christopher Kennedy KC sitting in the High Court:

• Did the Defendant fail to tell/inform the Deceased that a chest x-ray was required and/or that the Deceased needed to attend the local walk-in radiology department in order for the chest x-ray to be carried out;
• If the court finds that the Deceased was not told and/or informed about the chest x-ray and/or that the Deceased needed to attend the local walk-in radiology department in order for the chest x-ray to be carried out, whether the Deceased would have attended for a chest x-ray had he been so informed;
• Contributory negligence

Was Mr Ahmed told about the chest x-ray and the need to attend radiology?

The Judge found that Mr Ahmed was not told for the following reasons.

In respect of Mr Ahmed, the Judge held that he had been worried about his health in late 2018 and early 2019 and it was more likely that if a recommendation had been made for further investigation, he would have followed it up. Also, Mr Ahmed was familiar with a process whereby a request was made, and it was for the patient to take it further – he had gone through this process with his blood tests. There was no evidence in the records that Mr Ahmed had had an x-ray of any sort before, this was a new form of investigation, which made it less likely that if told about it, he would have dismissed it.

Furthermore, Dr Daish accepted it is likely that she would have told Mr Ahmed that the reason for the x-ray was to rule out more serious pathology, in particular cancer. The Judge noted this is an investigation that most people, not simply those worried about their health, would take forward.

The Judge also scrutinised the medical records and noted:

• There was no record in the appointment note of any discussion about the chest x-ray or in the Dr Daish’s plan. This was a contrast to the records of other doctors, who recorded their further investigations in their notes. The Judge held it likely that if Dr Daish had been dealing with the chest x-ray in Mr Ahmed’s presence, she would have made reference to it in the record of the discussion or her plan.
• Whilst Dr Daish’s evidence was that part of the reason she allowed 2 weeks before the review appointment to permit the x-ray to be obtained and reviewed, this was not included in her note.
• This was not a normal consultation where all matters were dealt with in the presence of Mr Ahmed. Dr Daish had further thoughts after Mr Ahmed had gone and prescribed prednisolone – that made it more likely the x-ray was also an afterthought.

Would Mr Ahmed have attended for a chest x-ray if he had been informed

The Judge had no difficulty in finding Mr Ahmed would have attended for a chest x-ray if he had been requested.

Contributory negligence

The Judge noted the observations of Yip J in Dalton v Southend University Hospital NHS Foundation Trust [2019] EWHC 832 at [33] that contributory negligence in clinical negligence cases is rare.

The Judge distinguished the cases of Pigeon v Doncaster Royal Infirmary and Montagu Hospital NHS Trust [2002] Lloyd’s Rep Med 130 and Sims v MacLennan [2015] EWHC 2739 (QB). Pigeon concerned a Claimant who accepted that she understood the risk she was taking in not having smear tests. Sims concerned a Claimant who failed to follow advice to have his blood pressure checked. Both those cases had evidence that the Claimants understood the significance to follow the advice of GP.

The Judge held that the Defendant could not show that Mr Ahmed understood the significance of his failure to attend, and without that understanding, it would not be unreasonable for a person in Mr Ahmed’s position not to attend the relevant appointments.

Comment

This case is a useful reminder of how a Court will consider and evaluate medical records, and how silence on an issue can be a critical factor in a case, especially when considering evidence about usual practice.

This case also shows again how difficult it is to establish contributory negligence in clinical negligence claims.

Article by Emma Woods