Much of clinical medicine depends on history. Pain, dizziness, disturbed sleep, intrusive recollections and loss of confidence may leave little objective trace. A medico-legal expert is entitled to consider what a claimant reports. The error lies in failing to identify the limits of that reliance.
The account is evidence, not proof.
Medical records may provide contemporaneous evidence of symptoms, treatment and function. They can confirm when a claimant sought help, what was reported at the time and whether the clinical position changed. They are not a complete record of a person’s life.
A claimant may expect a minor injury to settle without treatment. They may struggle to obtain an appointment or manage symptoms independently. A GP consultation may concentrate on one complaint and omit another. A brief entry should not automatically be read as a formal denial of every symptom later described.
The absence of an entry is therefore not always evidence that the symptom was absent. Its significance depends on context.
If the claimant attended repeatedly during the relevant period but never mentioned a supposedly disabling problem, that omission may require explanation. If there was no clinical contact at all, the records cannot be expected to confirm what happened before the first consultation, expert’s should neither worship the records nor dismiss them.
Fact and reported history must remain separate.
Practice Direction 35 requires an expert to state the material facts and instructions on which an opinion is based, identify which facts are within the expert’s own knowledge and explain when insufficient information prevents a definite opinion. The report’s statement of truth also distinguishes matters within the expert’s knowledge from those derived from other sources.
That should shape the language of the report.
“The claimant experienced severe pain immediately after the accident” presents the history as an established event. “The claimant reports that severe pain began immediately after the accident” identifies its source accurately.
The difference is not cosmetic. It allows the parties and the court to see where an opinion depends on an account that may later be accepted, rejected or qualified by other evidence.
Where a disputed fact would alter the opinion, the expert should address the alternatives. The prognosis may differ, for example, if symptoms began immediately rather than several weeks later. Judicial guidance similarly emphasises that experts should distinguish known facts from assumed facts and consider alternative factual scenarios where they affect the conclusion.
Consistency matters more than perfection.
A reliable account does not have to appear in identical language throughout the records. People describe symptoms differently at different times. Memory becomes less precise, symptoms fluctuate and clinical notes summarise rather than transcribe consultations.
The expert should instead look for material consistency.
Does the reported onset fit the accident mechanism? Is the symptom pattern clinically plausible? Has the claimant given a broadly stable history to different clinicians? Do treatment, medication, absence from work or changes in activity support the degree of difficulty described? Are examination findings compatible with the alleged restriction?
No single answer determines whether the claimant is truthful. Together, these matters help the expert assess how securely an opinion can be based on the history.
Contradictions must be addressed rather than concealed. If a claimant reports immediate disabling back pain but early records describe normal activity and no back complaint, the discrepancy should be identified and explored. The report should not quietly select whichever version best supports the instructing party.
Nor should every discrepancy be treated as dishonesty. Memory may be imperfect. A question may have been misunderstood. Records may be incomplete. Symptoms may have developed or worsened after the first consultation.
When missing records become decisive.
Some opinions can reasonably be given despite limited documentation. A minor soft-tissue injury may remain clinically plausible even if the claimant did not attend hospital. The expert may provide a qualified opinion based on the account, examination and later records.
Other questions cannot safely be answered without more information.
Pre-accident records may be needed where there is a suggestion of similar earlier symptoms. Mental health records may be required when distinguishing an accident-related condition from longstanding anxiety or depression. Imaging, operative notes or rehabilitation records may be necessary before commenting on structural injury, treatment response or future care.
The GMC requires medical experts to take reasonable steps to check accuracy, include relevant information and distinguish factual evidence from professional opinion. Experts should check whether all relevant evidence has been provided and state clearly when information is insufficient or an opinion must be qualified.
If important records are missing, the answer is not to fill the gap with confidence. The expert should request the material, defer the affected opinion or explain the assumption on which a provisional conclusion is based.
A report may properly state: On the assumption that the claimant’s account of immediate symptom onset is accepted, the reported condition is clinically consistent with the accident. In the absence of contemporaneous records, however, I cannot independently confirm the timing or severity of those symptoms.
That wording assists the court without pretending that an unresolved factual question has been answered medically.
The expert is not the trial judge.
Experts sometimes drift from identifying evidential limitations into deciding whether a claimant is honest.
That is dangerous territory.
An expert may say that an account is inconsistent with documented history, clinical findings or the expected course of a condition. They may explain that a reported restriction appears unusual or that there is insufficient evidence to attribute it to the accident.
They should be cautious about declaring that the claimant is lying. Credibility is ultimately a matter for the court. CPR Part 35 requires the expert to provide independent assistance within their expertise, and that duty overrides any obligation to the person who instructed or paid them. Practice Direction 35 also requires consideration of facts that may detract from the expert’s opinion.
Clinical inconsistency may inform an expert’s assessment. It does not automatically authorise a finding of dishonesty.
What should the report make clear?
A report relying substantially on the claimant’s account should identify which parts of the history are self-reported, which are supported or contradicted by records and what relevant evidence remains unavailable. It should explain whether the history is clinically plausible, whether any opinion depends on a disputed assumption and whether further records could alter the conclusion.
The expert may still reach a firm view. Qualification is not weakness when the evidence demands it.
A claimant’s account is often the starting point of a medico-legal assessment and may remain important even without early supporting records. The mistake is treating it either as worthless because it is uncorroborated or as proven because it was confidently given.
An expert can rely on the account only to the extent that its source, consistency and limitations are made plain. Where the missing evidence prevents a sound conclusion, the proper opinion is not a guess. It is that the available material is insufficient.
