When medical records do not tell everything

24 Aug 2026|Opinion|Add your comment

Courts place considerable weight on medical records, but recent authorities underline the importance of assessing them alongside other evidence

In modern clinical negligence litigation, courts continue to place considerable weight on medical records. However, the authorities have emphasised that although clinical notes made at the time are generally likely to be accurate, they are not conclusive.

Courts frequently begin with the assumption that written notes are likely to be accurate because they are made pursuant to a professional duty and for the purposes of ongoing medical treatment.

While such deference appears logical, it ignores the practical and human realities of medical treatment: records may be rushed, incomplete, retrospective or limited in scope. Doctors will be seeing multiple patients in any one day and will not remember each and every interaction. Conversely, patients may retain vivid memories of distressing or significant clinical events which happened to them individually, although recollections may also be affected by reconstruction and the passage of time.

In Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283, the Court of Appeal recognised that clinical records are usually reliable because healthcare professionals create them as part of their professional duties and to assist ongoing patient care. However, the court emphasised that they can still be shown to be inaccurate where other evidence justifies that conclusion.

Any assumption that clinical notes reflect the full reality of the clinical interaction is flawed. Notes are often produced under time pressure, summarised to essential points, and written primarily to support patient care rather than to provide a complete account of events.

Judges must still evaluate the reliability of medical records in the context of all the evidence. The fact that a document is considered contemporaneous does not relieve the court of the obligation to decide what weight should properly be attached to it.

This approach was reinforced in HXC (by her litigation friend) v Hind & Craze [2020] 10 WLUK 603, in which the court described the likely accuracy of a contemporaneous medical entry as a starting point, but no more than that. It nevertheless preferred the relevant records and found for the defendants. Failes v Oxford University Hospitals NHS Trust [2020] EWHC 3333 (QB) subsequently adopted that approach, although the claim failed on causation.

Nevertheless, there remains a risk that the practical effect of these authorities is to elevate medical records above all other forms of evidence. Patients typically experience a single significant or traumatic event and may remember it vividly many years later. Clinicians, by contrast, frequently rely upon records to reconstruct events. Yet where notes are silent regarding a discussion, symptom or warning, courts can be tempted to infer that the event simply did not occur: “if it is not recorded, it did not happen”.

Taken together, these authorities reveal a tension at the heart of clinical negligence litigation. While courts repeatedly emphasise the importance of contemporaneous records, they also recognise that deficiencies in documentation can distort the fact-finding process. The challenge is ensuring that deference to medical notes does not become an unquestioning assumption that the record is necessarily a complete reflection of what occurred.

Absence of documentation is not necessarily evidence of absence, particularly where the omission may itself indicate a record-keeping failure. Patient recollection should be assessed alongside the records, particularly when describing symptoms, pain or conversations that would naturally leave a strong impression.

Courts should adopt a more balanced approach to assessing evidence, treating records as one part of the wider body of evidence rather than a default source of truth.

This approach would not reduce the importance of medical records. It would simply recognise the realities of clinical practice and support fairer fact-finding.

These authorities underscore the importance for practitioners acting for claimants and defendants of approaching medical records with both respect and caution. Solicitors acting for claimants should obtain and analyse the records at the earliest opportunity, identifying omissions, inconsistencies, unexplained gaps and retrospective amendments. Where important matters are not recorded, solicitors should consider whether the absence of documentation itself may support the claim, particularly where proper recording formed part of reasonable clinical practice.

Claimant solicitors should also be alert to the principles derived from Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683. Although not a clinical negligence case, Keefe established an important evidential principle: where a defendant’s breach of duty has itself created or contributed to an evidential gap, the defendant should not ordinarily benefit from the resulting uncertainty. In such circumstances, courts may be entitled to take a benevolent view of the claimant’s evidence and a correspondingly critical approach to the defendant’s position.

The continuing relevance of that principle in clinical negligence litigation was explored in Richins v Birmingham Women’s and Children’s NHS Foundation Trust [2022] EWHC 847 (QB). There, the court considered “claimant benevolence” after failures to take urine samples deprived the claimant of evidence that might otherwise have existed. The judgment confirms that courts may take account of difficulties caused by a defendant’s omissions, but the burden of proof remains on the claimant. Benevolence could not bridge the causation gap in the face of the expert evidence, and the claim failed.

In practical terms, where key observations, assessments or discussions are missing from the records, claimant solicitors should not simply accept that the absence of documentation undermines the claim. Instead, they should consider whether the missing material itself demonstrates a failure in record-keeping and whether Keefe principles provide a framework for arguing that factual uncertainty created by the defendant’s omissions should not be resolved against the claimant. Early, detailed witness statements remain particularly important in preserving recollections and explaining any conflict between a claimant’s recollection and the records.

Equally, defendant solicitors should be alert to gaps in documentation and avoid assuming that contemporaneous records will necessarily be a full record of what took place, particularly where clinicians have limited independent recollection.

Ultimately, medical records remain powerful evidence, but they are not infallible. Clinical negligence cases must be determined by considering documentary, witness and expert evidence together, rather than treating the absence of a note as conclusive proof that an event did not occur.

Legal News desk contact: editorial@solicitorsjournal.com|

Courts frequently begin with the assumption that written notes are likely to be accurate because they are made pursuant to a professional duty and for the purposes of ongoing medical treatment.

When medical records do not tell everything

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