A contradiction between the history given at examination and the contemporaneous records must be identified, explored and reflected in the opinion. The expert should explain its medical significance without deciding a factual dispute that belongs to the court.
Start by checking whether there is a genuine contradiction.
Medical records are not transcripts of everything said during a consultation. They are clinical documents produced for treatment, often under time pressure. A symptom may not be recorded because it was minor, because another problem dominated the appointment or because the clinician did not consider it relevant to management.
Records can also contain coding errors, copied text, incorrect dates and summaries written long after the event. The absence of a symptom from one entry is therefore different from a positive entry stating that the symptom was denied.
The expert should first compare the accounts carefully. Does the record genuinely contradict the claimant, or does it merely fail to support the later history? Is the difference about the existence of symptoms, their severity or when they began? Was the claimant asked the same question on both occasions?
An expert who describes every omission as an inconsistency will overstate the evidence. An expert who dismisses every contradiction as poor record-keeping will do the opposite.
Put the difference to the claimant.
Where a material contradiction is identified before or during the examination, the claimant should ordinarily be given an opportunity to explain it.
The question should be neutral. The expert might say that the current account places the onset of symptoms on the accident date, while an earlier record appears to give a later onset, and ask whether the claimant can explain the difference.
The explanation should then be recorded accurately. The claimant may say that the earlier consultation focused upon another condition, that symptoms were initially mild or that the clinical entry is mistaken. They may acknowledge that their memory is uncertain, they may offer no explanation at all.
The expert does not have to accept the response. Equally, it should not be omitted simply because it fails to resolve the problem. The GMC requires expert evidence to be accurate and not misleading, with reasonable steps taken to check information and include material evidence. It also requires experts to make clear what is factual evidence and what represents professional opinion.
Do not rewrite the history to remove the problem.
A report should separate the claimant’s account from the documentary evidence. It is misleading to write, “The claimant developed neck pain immediately after the accident”, when that proposition is disputed by the records. A more accurate formulation would be:
“The claimant reports that neck pain began immediately following the accident. The first recorded complaint appears three months later, when the GP entry describes an onset during the preceding week.”
This does not accuse the claimant of dishonesty. It tells the reader what each source says. The distinction matters because Practice Direction 35 requires an expert to set out the facts and instructions material to the opinion, identify which matters are within the expert’s own knowledge and state any qualification affecting the conclusion. Experts must also consider facts that may detract from their opinions.
A polished report that conceals adverse records is not independent evidence. It is advocacy by omission.
Assess the significance rather than counting discrepancies.
Not every inconsistency has the same medical importance. A claimant may be wrong about the exact date of a physiotherapy appointment without affecting diagnosis or causation. A difference about whether symptoms began immediately or six months later may alter both. Conflicting accounts of previous anxiety, earlier back pain or continuing employment may affect the expert’s view of vulnerability, prognosis or functional loss.
The report should explain why the discrepancy matters. In a straightforward soft tissue claim, a substantial delay before the first documented complaint may weaken the proposed causal connection. It does not automatically exclude it. The expert should consider the nature of the injury, the expected clinical course, opportunities to report symptoms and whether there is other supporting evidence.
In a psychological injury claim, delayed disclosure may be clinically understandable. Some people do not initially recognise travel fear, poor sleep or intrusive memories as symptoms requiring medical attention. A later account of severe symptoms may nevertheless be difficult to reconcile with records showing normal function, repeated denial of psychological difficulty or an unrelated event immediately before deterioration.
The task is interpretation, not arithmetic. Five minor differences do not necessarily outweigh one persuasive piece of contemporaneous evidence.
Do not decide that the claimant is lying.
The expert may comment on whether the account is internally consistent, clinically plausible and supported by the available material. The expert may also say that a discrepancy reduces confidence in a particular conclusion, what the expert should not usually do is declare the claimant dishonest.
Credibility is generally a matter for the court, which has access to witness evidence, cross-examination and material beyond the medical bundle. The expert sees only part of the case. Even an inaccurate account may result from poor memory, misunderstanding, anxiety, suggestibility or an honest attempt to reconstruct events.
That does not mean the expert must accept an implausible history. A proper opinion might state:
“The conflicting accounts prevent me from reaching a firm conclusion that the reported symptoms began as a consequence of the accident.”
That is a medical conclusion about the reliability of the evidential basis. It is not a finding of fraud.
Expert evidence must remain objective and unbiased, and the expert must not assume the role of advocate.
Give alternative opinions where the facts matter.
Sometimes the contradiction cannot be resolved medically.
The claimant says that symptoms began on the accident date. The records indicate a later onset. Witness evidence may support one account, but the expert cannot decide which version the court will accept and the safest approach is often to provide alternative opinions.
If the claimant’s account is accepted, the expert may consider the symptoms consistent with an accident-related injury. If the contemporaneous account is preferred, the later onset may make causation less likely or require another explanation.
This preserves the boundary between medical opinion and factual determination. It also makes the report useful whichever factual finding is made.
The GMC states that an expert should identify the facts or assumptions supporting the opinion and make clear where a conclusion is qualified because the evidence conflicts.
Ask for missing material before committing.
A contradiction may indicate that the expert has not received the whole record.
Emergency department notes, ambulance records, physiotherapy records, occupational health documents or earlier GP material may clarify what happened. Where the missing information is likely to affect the opinion, the expert should request it rather than fill the gap with assumption.
Practice Direction 35 requires experts to say when they cannot reach a definite opinion because the available information is insufficient.
The report can remain provisional or conditional while further material is obtained. The expert should identify exactly what is missing and explain how it may affect diagnosis, causation or prognosis.
“I cannot reach a concluded opinion until the earlier records are available” is more helpful than a confident answer resting upon incomplete evidence.
Correct the report when new records change the opinion.
Contradictory information sometimes arrives after the report has been served. The expert may receive earlier records, surveillance evidence or another report that materially alters the factual basis.
This should not be treated as an inconvenience to be defended away.
Where the expert’s view changes on a material matter, Practice Direction 35 requires that change to be communicated without delay and, where appropriate, to the court. The expert should explain what new information was received, why it affects the earlier reasoning and what the revised opinion is.
Changing a view in response to better evidence is not a professional embarrassment. Refusing to do so may become one, medical records are important, but they are not automatically correct. Claimants may be mistaken without being dishonest, and records may be incomplete without being worthless.
The expert’s task is to expose the disagreement rather than resolve it by preference. State what the claimant says, state what the records show, test explanations and explain how the uncertainty affects the opinion.
A contradiction should never be hidden. Nor should it be made to prove more than it does.
