Incorrect entry in the medical records – what can you do?

It should be common knowledge that medical records are not prepared for the purposes of litigation, but for the purposes of treating a patient. There can be errors. There is a risk that an entry undermines the credibility of a witness.

I remember once where my client slipped down a stair case in a pub. The hospital records recorded the accident as ‘slipped down staircase at home’. The Defendant did not dispute the accident circumstances because they had the CCTV footage and accident reports. Envisage a situation where the Defendant puts the Claimant to proof, they obtain their medical records and an incorrect entry puts the Claimant at risk of being unable to prove the facts as they state them.

This post discusses this in more detail.

Starting point

The starting point is that the medical records is hearsay. While at common law, hearsay evidence is inadmissible, s.6(5) of the Civil Evidence Act 1995 (‘the 1995 Act’) allows the statement to be proved as hearsay evidence under s.1 of the 1995 Act.

S2 of the act imposed safeguards:-

Notice of proposal to adduce hearsay evidence.

(1)A party proposing to adduce hearsay evidence in civil proceedings shall, subject to the following provisions of this section, give to the other party or parties to the proceedings—

(a)such notice (if any) of that fact, and

(b)on request, such particulars of or relating to the evidence,

as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay.

(2)Provision may be made by rules of court—

(a)specifying classes of proceedings or evidence in relation to which subsection (1) does not apply, and

(b)as to the manner in which (including the time within which) the duties imposed by that subsection are to be complied with in the cases where it does apply.

(3)Subsection (1) may also be excluded by agreement of the parties; and compliance with the duty to give notice may in any case be waived by the person to whom notice is required to be given.

(4)A failure to comply with subsection (1), or with rules under subsection (2)(b), does not affect the admissibility of the evidence but may be taken into account by the court—

(a)in considering the exercise of its powers with respect to the course of proceedings and costs, and

(b)as a matter adversely affecting the weight to be given to the evidence in accordance with section 4.

Some practitioners think that simply listing documents for disclosure in the List of documents is enough. However, it is important to note that disclosing a document is not the same as providing evidence for a claim. To do this, the document should be presented as part of a witness statement. This approach is in compliance with the 1995 Act.

This is, of course not an issue if the contents of the record are accurate and the witness wants to rely on it. The other party would need to challenge the witness in cross-examination (putting other documents to them or other contradicting statements made by the witness) or call the author of the document. Why this is the case was importantly discussed in the case below.

Denton Hall Legal Services v Fifield [2006] EWCA Civ 169

This was a case concerning Mrs Fifield who claimed for repetitive strain injury as a result of her work as a secretary. Part of the Defendant’s case and appeal was challenging when Mrs Fifield said her symptoms began (in order to challenge that they were caused by her employment.

The medical records suggested that symptoms had been present for 6-12 months prior to her initial attendance with her GP. Mrs Fifield’s Part 35 expert concluded that symptoms were attributed to the increased workload because no symptoms were present. The Defendant’s expert suggested the symptoms were simply at a worst position when the GP was first consulted and that there was no identifiable cause or diagnosis that supports a work-related upper limb disorder.

To cut a long story short, joint statements initially led to the Claimant’s expert agreeing to the Defendant’s view about the start of the symptoms, but the Claimant’s expert retracted their views within the joint statement, saying he did not review it properly (which ultimately affected his credibility as an expert). Naturally the date of the commencement of the symptoms was an important sticking point.

The starting date was put to the Claimant’s Part 35 expert in cross-examination. Both experts agreed that there was a “causative factor only if there was a temporal association between a change in workload and the reported deterioration of symptoms”. The outcome of cross-examination essentially came to whether or not the starting date of the symptoms matched the increase work load, a factual point for the Court to determing.

The Defendant argued that their Part 35 expert’s opinion should be accepted because (amongst other reasons such as the change of stance of the Claimant’s expert) the medical records contradicted the Claimant’s evidence about when the symptoms started.

The trial judge found for the Claimant. One of the points in the Defendant’s appeal was that the Judge should have treated the medical records entries as evidence in its own right and not just something that could be used to discredit Mrs Fifield.

The Court of Appeal rejected that proposition. Essentially, when the doctor made a record, they were recording what they say the patient told them, rather than the opinion they expressed based on those statements. The entry was a record of a potential statement that is inconsistent with what the patient later says in another statement (i.e. the witness statement). The Judges then gave guidance about how such experience should be treated.

What does Denton v Fiefield mean for medical record entries?

Essentially the medical record entries can be proven by one of three ways:-

• The medical records is put to the patient. If they admit it, then the record is proven
• The author of the record is called to Court and it is put to them.
• It is treated as hearsay (with the appropriate notice under the Civil Evidence Act 1995) and the Court must apply the appropriate weight

The Court, upon concluding it is an inconsistent statement (rather than an error by the author), can only consider it as going to the credibility of the Claimant. The record it self cannot be treated as evidence of its contents.

So there are two approaches:-

• prove the author of the record made a mistake (which may require the author to give evidence)
• obtain other evidence that would undermine the content of the medical record so that the court will place less weight on it.

Having accurate records, particularly medical records, can be extremely important when trying to establish a fact. One disadvantage of such records is that they are not usually presented to the patient for approval and are not created with litigation in mind.

There is an important limitation to consider. Any recording of information comes from the Claimant’s self-reporting. If the Claimant lied to the doctor, then this may just be an attempt to make their case stronger. However, it’s important to note that the self-reporting is not evidence in itself, but rather a prior statement that either supports or contradicts what the Claimant is currently saying. If the Court is not convinced that the Claimant is being truthful, then it will examine the contents of the medical records against that..

The best course of action for the Claimant is to gather as much contemporaneous evidence as possible to support the contents of the witness statement. While oral evidence is still considered evidence, supplementing it with documentation will significantly aid the case.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.