Medical Records in Civil Proceedings

Claimants often rely on medical records as evidence to corroborate their case as to the nature and extent of their injuries in personal injury litigation.  Conversely, Defendants often use a Claimant’s medical records against them where those records contain information that undermines the Claimant’s account as to their injuries. In either case, it is important to understand the evidential status of medical records in civil proceedings.

Medical Records are Hearsay Evidence

“Hearsay” is defined at section 1(2)(a) of the Civil Evidence Act 1995 (“CEA”) for the purposes of that Act as: 

“a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated.“

In Denton Hall Legal Services v Fifield [2016] EWCA Civ 169, the Court of Appeal considered the evidential status of medical records. At [77], Buxton LJ stated:

“What the doctor writes down as having been told him by the patient, as opposed to the opinion that he expresses on the basis of those statements, is not at that stage evidence of the making of the statement that he records. Rather where, as here, the record is said to contradict the evidence as to fact given by the patient, the record is of a previous inconsistent statement allegedly made by the patient. As such, the record itself is hearsay.“

Hearsay Evidence is Generally Admissible in Civil Proceedings

Section 1(1) CEA states that:

“in civil proceedings evidence shall not be excluded on the ground that it is hearsay“.

There are procedural rules as to notice in respect of hearsay evidence generally, as detailed at section 2 CEA. Failure to comply with those provisions does not affect the admissibility of the evidence, but such failure may be taken into account by the court in considering the exercise of its power in respect of the course of proceedings, costs and the weight to be given to the evidence. Section 4 CEA sets out the factors to which the court will have regard when assessing the weight to be given to hearsay evidence.

Medical Records in Agreed Bundles 

If medical records form part of an agreed bundle for a hearing (as is commonly the case), the documents are admissible at that hearing as evidence of their contents unless a party gives written notice of objection to their admissibility (see CPR PD32 paragraph 27.2). 

If the medical records are not part of an agreed bundle (which is rare) the provisions of sections 2 and 4 CEA (as above) would invariably apply.   

Proper Pleadings

Defendants should provide a Claimant with early notice of their intention to challenge the Claimant’s evidence as to their injuries (whether by way of the initial pleading or amendment following disclosure) to avoid any issues arising at trial as to the extent to which medical records can be relied upon as evidence undermining a Claimant’s credibility. The remarks of Sir Stephen Sedley in Charnock v Rowan [2012] EWCA Civ 2 at [24] (albeit obiter) are to be heeded: 

“… It may be that, at least in essentially straightforward litigation like the present, the answer to this problem lies in ensuring that the opposing case is properly pleaded, if need be by amendment following disclosure. … From that point the obligation will lie on each party’s lawyers to go through the agreed documents with the client or witness and take instructions on any discrepant evidence, albeit hearsay, relevant to the pleaded issues. But a party which has failed to plead its case with sufficient clarity may well find itself barred from adducing any evidence, hearsay or not, in support of an unpleaded contention.“

Hearsay Evidence as Evidence of the Truth of the Matters Stated 

A Claimant’s medical records can be adduced to show that they did in fact make the statement contained in the records. This can of course be proved if, when the statement is put to the Claimant, he or she admits to having made it. It can also be proved by complying with the procedure set out at sections 4 and 5 of the Criminal Procedure Act 1865.

There are conflicting decisions as to whether hearsay statements such as those contained within medical records, can be evidence of the truth of the matters stated. In Denton, Buxton LJ’s view (albeit obiter) at [77] was that an inconsistent statement contained in a patient’s record “could not be treated itself as evidence of its contents“. 

In Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961 (QB), however, Martin Spencer J decided that the Defendant’s medical note was admissible to prove the truth of what the Defendant was recorded as having said, notwithstanding the Defendant not attending trial and therefore not having been cross-examined about the note. In reaching this decision, Martin Spencer J referred to section 6(5) CEA, which states: 

“Nothing in this section shall be construed as preventing a statement of any description referred to above from being admissible by virtue of section 1 as evidence of the matters stated.” 

Notwithstanding this apparent conflict, it probably matters not whether hearsay statements can be relied upon as evidence of the truth of the matters stated. The reality is that in most cases, a Defendant can rely upon the very existence of a previous inconsistent statement in seeking to undermine the credibility of a Claimant. Conversely, a Claimant can rely on the very existence of a previous consistent statement to rebut a suggestion that his evidence has been fabricated or, if not for this purpose, with the leave of the court (per section 6(2) CEA).