Missing medical records: what an expert should do when the disclosure has gaps

Every medico-legal opinion rests on the documents the expert was given, and those documents are almost never complete. A referral appears with no clinic letter to follow it. A blood test is ordered and the result is nowhere in the bundle. A hospital admission has an admission note and a discharge summary with three weeks of nothing in between. Gaps like these are routine, and how an expert handles them is one of the quieter tests of whether a report will hold. The instinct to work around a gap, to fill it with a reasonable assumption and move on, is the instinct that gets an opinion into trouble.

Why do gaps in the records matter so much?

An expert opinion is only as reliable as the factual record beneath it. When a document is missing, the expert is either reasoning from an assumption or reasoning from silence, and both are vulnerable. The other side will know the bundle as well as the expert does, and a conclusion that depends on a record no one can produce is a conclusion built to be challenged.

The risk is sharpest in cases that turn on sequence and timing. If the question is whether earlier action would have changed the outcome, a three-week gap in the notes is not a minor inconvenience. It is the very period the opinion needs to describe. An expert who does not notice the gap, or notices it and says nothing, leaves the reader to discover it under cross-examination, which is the worst place for it to surface.

What counts as a gap in the records?

Not every gap looks like a missing page. Some are obvious and some only show up once the chronology is assembled and a step in the story has no document behind it. The recurring types are worth naming, because an expert who knows what to look for finds the gaps early.

• A referral or request with no corresponding letter, result or report to close the loop.
• A test that was clearly ordered but whose result does not appear in the bundle.
• An admission with no discharge summary, or a discharge summary with no admission note.
• A period of ongoing treatment with no contemporaneous notes at all.
• A document that another record plainly refers to but that was never disclosed.
• Entries that are present but illegible, or pages that are cut off, out of order or duplicated.

The last category is easy to overlook. A record that cannot be read is, for the purposes of the opinion, a record that is missing, and it should be treated the same way.

Can an expert give an opinion on incomplete records?

Usually, yes. Cases rarely wait for a perfect bundle, and an expert is often asked to advise on the material available. What Part 35 requires is not completeness but transparency. Practice Direction 35 obliges the expert to state the facts and instructions the opinion is based on, and to make clear when an issue falls outside their expertise or when the information before them is incomplete.

So an opinion on partial records is entirely legitimate, provided the expert is honest about the foundation. The report should say what was available, what was missing, what assumption was made in place of the missing material, and how the conclusion might change if the missing record turned out to say something different. An opinion offered that way is defensible. An opinion that presents itself as complete when it is not is the one that fails.

How should an expert flag a gap in the report?

The handling matters as much as the noticing. A gap should be recorded plainly, in the body of the report, at the point where it bears on the reasoning, rather than buried in a general caveat at the end.

A gap that is named, explained and reasoned around openly strengthens a report. The same gap, passed over in silence, is the thread the other side will pull.

In practice that means three things. Name the specific document that is missing, not simply that the records are incomplete. Explain why it matters to the opinion, so the reader understands what turns on it. And set out the assumption made in its absence, together with the effect a different record would have. Handled this way, the gap becomes part of the expert's transparent reasoning rather than a hidden weakness in it.

Whose responsibility is it to obtain the missing records?

Chasing the records is the instructing party's job, not the expert's. The expert's contribution is to identify precisely what is missing and why it is needed, so the solicitor can make a targeted request. There is a real difference between a general plea for more records and a specific list: the radiology report for the scan on a named date, the GP notes for a named six-month period, the discharge summary for a named admission. The specific request is the one that gets answered.

This is also why the gaps should be found early. A gap identified when the report is first drafted can often be filled before the report is finalised. A gap identified in the witness box cannot be filled at all.

What are the common mistakes?

The errors are predictable. The first is the silent assumption: filling a gap with a plausible guess and presenting the result as though the record supported it. The second is the vague flag, a line noting that records may be incomplete without saying which records or why it matters, which warns no one and helps no one. The third is discovering the gap too late, after the report is served, when the assumption it rests on can no longer be tested against the document that would settle it.

Behind all three is the same root cause: the records were never read as a whole. Gaps do not announce themselves in a page-by-page read. They appear when the material is assembled into a single sequence and a step in the story has no source behind it. Find that missing source early and it is a request to the solicitor. Find it late and it is a hole in the opinion.

Why it matters

An opinion is only ever as sound as the record it stands on, and the gaps in that record matter as much as the pages that are present. That is the principle ALLDOQ is built on. It reads the whole file, assembles the chronology in one place, and attaches the source page to every entry, so a step with no document behind it stands out instead of passing unnoticed. The gaps surface while there is still time to chase them, every fact the opinion relies on can be traced to the page it came from, and the expert can say with precision what is known, what is assumed, and what is still missing. That is what lets an opinion on incomplete records hold up as well as one on a complete bundle.