How to approach evidence of a clinician’s “usual practice” but with no contemporaneous record. Case Analysis: Shaheen & Anor v Daish

06/01/2026

By Martin Lanchester

Introduction

The recent judgment in the case of Ahmed v Daish [2025] EWHC 3056 (KB) provides an interesting view of how the court can approach a GP’s evidence about their ‘usual practice’ in the absence of a direct recollection by either party of a medical consultation and no medical note. It further clarifies the potentially high threshold for establishing contributory negligence against a patient who fails to attend follow-up appointments, but who was unaware of the significance of the appointment.

Factual Background

Mr. Ahmed attended his GP, Dr. Daish, on 11 February 2019 with worsening breathlessness. During the consultation, Dr. Daish used the ICE system to request a chest x-ray. In the local trust, this was a “walk-in” service; the request is inactive until the patient presents themselves at the radiology department.

Mr. Ahmed did not attend for the x-ray. He died of lung cancer in February 2023. The Claimants (his widow and son) alleged that Dr. Daish failed to inform Mr. Ahmed that an x-ray had been requested or how to obtain it. Mr. Ahmed made a statement before his death in which he recalled the consultation and saying that he was not told to attend for an x-ray – albeit the statement did not include evidence about what he was told. Dr. Daish, while having no specific memory of the meeting, maintained that her “usual practice” was to explain the request and the process. She conceded that a failure to do so would constitute a breach of duty.

The court was asked to determine three preliminary issues:

1. Did the Defendant fail to inform the Deceased of the x-ray request?
2. If so, would the Deceased have attended had he been informed?
3. Was the Deceased contributorily negligent by failing to attend subsequent follow-up appointments?

The Judge’s Conclusion and Reasoning

Christopher Kennedy KC sitting in the High Court found in favour of the Claimants on all three preliminary issues. Despite Dr. Daish being described as a “caring and competent doctor,” the court held that, on the balance of probabilities, she did not inform Mr. Ahmed of the need to attend for a chest x-ray.

1. Communication of the X-Ray

The Judge relied heavily on the contemporaneous medical records over the Defendant’s evidence of “usual practice.” Key factors included:

• Absence of a note of discussion: Unlike other GPs in the same practice who had recorded specific discussions about blood tests or x-rays, Dr. Daish’s note was silent concerning any discussion about a planned x-ray, and simply recorded that a chest x-ray had been requested. The absence of a note of the conversation was an important factor in the Judge’s reasoning.
• Context of the appointment: The Judge found that the patient was worried about his health and had sought emergency care the day before. It was “inherently implausible” that a man so concerned would ignore a test meant to rule out cancer if he had indeed been told about it.
• Evidence of post consultation notes: The medical records included detailed timings of events which showed Dr. Daish added a prescription (prednisolone) and closed the file minutes after the patient had already left the surgery. This suggested the x-ray request could have been processed as an afterthought without the patient being present.

2. Causation

The Judge found that Mr. Ahmed would have attended the x-ray. His history of attending for blood tests previously demonstrated that when he understood the “walk-in” process, he complied with it.

3. Contributory Negligence

The Defendant argued that Mr. Ahmed was negligent for failing to attend a follow-up appointment on 27 February 2019 and a later asthma review. The Judge rejected this, distinguishing the facts from cases like Pidgeon v Doncaster Royal Infirmary, and finding that contributory negligence required the patient to understand the significance of their failure to act. Because Mr. Ahmed did not know an x-ray had been ordered to rule out cancer, his failure to return for a routine review (especially if his symptoms had temporarily improved) was not unreasonable.

Points of interest for practitioners

1. Usual practice is not sufficient. This case reinforces the principle that while a clinician’s “usual practice” is admissible evidence, a conflict with a silent or contradictory contemporaneous record is likely to be scrutinised carefully by the court. For Claimant lawyers, the contrast between the Defendant’s note and other “exemplary” notes in the same patient history (e.g., other GP’s explicit note of “Advised CXR”) can be a powerful evidential tool.

2. Detailed information included in medical notes. The timing of the electronic audit trail included in the GP notes allowed the court to reconstruct the consultation minute-by-minute. Practitioners should consider seeking all available data included within medical IT systems as these often include the precise timings of administrative actions (like x-ray requests) and data such as the patient’s departure timestamp, automated text messages etc.

3. Defending contributory negligence The Judgment emphasises that the burden of proving contributory negligence lies on the Defendant, and that arguments focused on patient non-compliance will often require it to prove that the patient understood the risk they were taking by not attending.