Records v Recollection

The recent case of HTR v Nottingham University Hospitals NHS Trust 2021 has highlighted the fact that judges ruling in medicolegal claims will not always view medical records as providing evidential certainty. Instead, they are to be viewed as “a starting point, but no more than a starting point” for establishing an accurate record of a consultation/examination.


When there is a contested question of fact on a crucial issue in a medicolegal case, judges will often look to the medical records to provide some level of certainty. However, it is interesting and illustrative that Cotter J thought it was important to assess the surrounding context of the consultation when medical records are called into question.


Some particular points of interest for practitioners working in the medicolegal industry are as follows:

  • Medical records will not necessarily be viewed by the courts as the be-all-and-end-all of evidential certainty. Where there is ambiguity, medical records will be will observed as having ‘some, but only some, assistance on the central issue of fact.’


  • When seeking to challenge the reliability of contemporaneous medical records, it will almost always require an assessment of the surrounding context. Skilful evaluations of the credibility of each party will often be crucial in cases where medical records are challenged.


Cotter J’s summary of the correct legal approach to medical records is comprehensive, and will be of use to clinical negligence practitioners and lawyers.