The Digital Footprint: An Overlooked Source of Expert Evidence — Lessons from Shaheen and Ahmed v Daish [2025] EWHC 3056 (KB)

 

Dr Samah Boulis is a very experienced General Practitioner who provides expert evidence in medico-legal proceedings. She works as a full time NHS GP and is fully registered with the General Medical Council and is also on the Medical Performers list for GPs

Summary

Modern digital systems generate a detailed electronic footprint, including timestamps, document revisions, communications, task completion, and other system-generated metadata. These audit trails can provide an objective chronology of events that extends beyond the primary documentary record.

In Shaheen and Ahmed v Daish, the electronic audit trail demonstrated that elements of the management plan, including the chest X-ray request, were completed after the consultation had ended. While entirely consistent with routine clinical workflow, this chronology became legally significant because it supported the inference that there was no contemporaneous evidence that the patient had been informed about the investigation or how to access it.

The wider lesson for expert witnesses is that electronic audit trails should be analysed alongside the primary records. Whether reviewing healthcare records, engineering documents, financial systems or other digital records, audit data can corroborate or challenge witness recollection, reconstruct the sequence of events, and identify discrepancies between what was done, what was recorded, and what was communicated.

Learning Points for Expert Witnesses

• Identify the real issue in dispute. The central question is not always whether the professional decision or technical process was appropriate, but whether the key facts can be established from the available evidence.

• Prioritise contemporaneous evidence. Courts generally place greater weight on contemporaneous records, electronic audit trails, timestamps and other objective evidence than on retrospective recollections or evidence of "usual practice".

• Analyse the digital audit trail. Electronic systems often provide an objective chronology of events. Audit logs, timestamps and system metadata should be considered alongside the primary records when reconstructing what occurred.

• Distinguish actions from communication. Completing a task or initiating a process does not necessarily establish that relevant information, instructions or advice were communicated to the intended recipient.

• Recognise that silence may be significant. Where records contain no evidence that an important discussion or instruction took place, the court may conclude that it probably did not occur, particularly where similar matters are routinely documented.

• Understand the limits of "usual practice". Evidence based on habitual practice is generally less persuasive than objective contemporaneous documentation and should be interpreted accordingly.

• Assess whether communication enabled appropriate action. Where responsibility passes to another individual or organisation, experts should consider whether sufficient information was provided to enable the next step to be undertaken safely and effectively.

• View documentation as objective evidence. Accurate records support continuity, accountability and provide reliable evidence of events, decisions and communications.

• Consider behaviour in context. Courts may assess how an individual would probably have acted if appropriately informed, taking into account their previous conduct and the surrounding factual circumstances.

• Apply contributory negligence cautiously. Failure to follow advice does not establish contributory negligence unless there is evidence that the patient understood what was required and the consequences of not acting.

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