A 62-year-old gentleman had a CT scan of his abdomen because of acute abdominal pain. His condition settled quickly, but on the scan it was noted that he had a small left kidney. A renal scan was carried out, which confirmed there was no function on the left side.

In looking into his past, some 14 years ago he had a major resection for carcinoma of his pancreas and therefore went to seek legal advice as to whether or not there was medical negligence causing damage to the left kidney. The procedure had been undertaken privately, the Consultant Surgeon had long retired, and no notes were available from the hospital. In relation to General Practice, there was a discharge summary stating that this gentleman had a carcinoma of the pancreas, which was removed with great difficulty, and he had been detained in hospital for seven weeks. There was no other detail in the discharge summary.

During operations on the pancreas, particularly the distal tail, problems may arise because of the widespread dissection required to remove the tumour. This may include vessels to the spleen and the kidney as well as the ureter. There is no way of knowing whether or not damage to the kidney occurred accidentally or to control bleeding, or indeed, in the case that the ureter was damaged, whether or not the ureter was involved in the tumour and therefore had to be resected. In the absence of the contemporaneous records, it would not be possible to conclude that the damage to the kidney, which probably occurred around that time, was due to a breach in the standard of care. Also, he still has one fully functioning kidney and this gentleman is generally healthy, having done very well after the resection of his cancer. A case of negligence, therefore, is unlikely to succeed.

The lack of notes after 12 years is becoming an increasing problem, particularly with the General Data Protection Rules. In the case of adults, unless there is the possibility of contract law being invoked, it is only a requirement to hold notes for six to seven years and, therefore, it is difficult to prove an historical case.

MDU figures for 2021 show that fewer than one in six actions in medical negligence actually succeed, with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

Initial screening is, therefore, essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to Court with no chance of success. This is stressful for both the client and their legal adviser, and indeed for the medical personnel involved.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44 (0)28 87724177 or email rpeyton@rpeyton.com