The two types of evidence in a medical negligence claim
Short answer
Medical negligence claims rely on factual evidence (medical records, clinical notes, test results, witness accounts) and expert evidence (independent medical experts who review the records and give an opinion on breach of duty and causation). Both are essential — neither stands on its own.
Factual evidence is the raw record of what happened: medical records, clinical notes, test results, correspondence and witness accounts. It is the source material on which all expert opinion is based.
Expert evidence is the opinion of independent medical experts, instructed to review the factual evidence and express a view on whether the care fell below the required standard and whether that failure caused the claimant's harm.
Medical records — the foundation of every claim
Medical records are the most important category of factual evidence in any medical negligence claim. They are obtained under UK GDPR — every patient has the right to access their own medical records, and providers must respond within one month.
What records are typically needed?
| Record type | What it contains | Who holds it |
|---|---|---|
| GP records (full primary care record) | All consultations, prescriptions, referrals, test results, correspondence with hospitals | Your GP surgery |
| Hospital inpatient records | Admission notes, clinical notes, nursing notes, drug charts, operation notes, observation charts, discharge summaries | Hospital medical records department |
| Hospital outpatient records | Clinic letters, specialist assessments, investigation results | Hospital medical records department |
| Imaging and radiology reports | X-rays, MRI, CT scans and how they were reported | Radiology department / PACS |
| Pathology reports | Blood test results, biopsy results, tissue samples | Pathology department |
| A&E records | Triage notes, clinical assessment, observations, discharge instructions | The A&E department |
| Dental records | Clinical notes, X-rays, consent records, treatment plans | The dental practice |
| Mental health records | Community mental health team notes, inpatient records, risk assessments | The mental health trust |
| Private clinic records | As above — private providers must also comply with GDPR access requests | The private clinic or hospital |
Why the full record matters
In many cases the negligence story is told across years of records — a series of consultations where symptoms were reported but not acted upon, test results not followed up, referrals that should have been made. A partial record misses the pattern. Your solicitor will request the complete record, not just the period around the incident.
What if records are missing or incomplete?
Missing records do not end a claim. If records have been lost or destroyed, your solicitor will seek an explanation from the provider. Courts may draw adverse inferences where records are missing in suspicious circumstances. Your own notes, diaries and correspondence about your treatment can supplement incomplete records.
The independent medical expert report
The independent expert report is the single most important piece of evidence in a medical negligence claim. Without it, a solicitor cannot advise that a claim has merit and cannot proceed to the formal claim stage.
What does the expert do?
- Reviews all of the relevant medical records
- Applies the Bolam test: would a responsible body of practitioners in that specialty have accepted the approach taken?
- Considers the Bolitho qualification: could the approach withstand logical analysis?
- In consent cases, considers the Montgomery standard: was the patient told about all material risks?
- Provides a written report setting out their opinion on breach of duty and causation
- May provide a supplementary report addressing the defendant's expert opinion
How is an expert selected?
Your solicitor will instruct an expert who:
- Practises or has practised in the relevant specialty
- Has no connection to the treating clinician or institution
- Has experience as an expert witness in clinical negligence proceedings
- Is sufficiently senior to carry weight before a court
In complex claims, multiple experts may be needed — for example, a GP expert on breach, an oncologist on causation, and a care expert on future needs.
What the expert report enables
Once the expert report confirms that breach of duty and causation can be established, your solicitor can:
- Advise you that the claim has merit
- Send the formal Letter of Claim to the defendant
- Negotiate with the defendant's legal team on the basis of the expert opinion
- Proceed to court proceedings if the defendant does not settle
Evidence of financial loss — special damages
Special damages are the financial losses you have suffered as a direct result of the negligent treatment. The more thoroughly these are documented, the stronger the financial component of your claim.
| Loss type | Evidence needed |
|---|---|
| Past lost earnings | Payslips before and after the harm; P60s; employer letter confirming absence and loss of income |
| Future lost earnings | Evidence of current earnings; expert assessment of impact of disability on earning capacity |
| Past medical treatment costs | Receipts for private treatment, physiotherapy, counselling, prescriptions |
| Future medical treatment costs | Medical evidence of ongoing treatment needed; quotations where available |
| Past care and assistance | Schedule of care provided by family; any care invoices |
| Future care costs | Care needs assessment by independent expert; schedule of future requirements and costs |
| Aids and adaptations | Receipts for items purchased; assessments for future needs |
| Travel costs | Mileage records, transport receipts to medical appointments |
| Accommodation costs | Architect or occupational therapist assessment where adapted accommodation is needed |
Keeping records of financial losses
Claimants should keep records of all losses from as early as possible. A simple spreadsheet or folder of receipts, payslips and invoices is enough to start. Your solicitor will help you prepare a formal schedule of loss as the claim progresses.
Witness evidence
In some claims, the evidence of the claimant themselves — and of any witnesses — is important. This is particularly true where:
- The records are incomplete and the claimant's account of symptoms reported to clinicians is relevant
- The claimant wishes to give evidence about the impact of the injury on their daily life (witness statement for quantum)
- A family member or carer can give evidence about the claimant's needs
Your solicitor will take a detailed statement from you at an appropriate point in the claim. This is not required before the initial assessment.
What evidence do you need before the first consultation?
Nothing specific. The first consultation with a specialist solicitor is a conversation — not a document exchange. You will be asked to describe what happened, when, and what harm you believe resulted. From that, the solicitor will advise whether it is worth pursuing and what records to obtain.
However, if you have any of the following already available, bringing them to the first consultation can be helpful:
- Any correspondence from the clinician or hospital about the incident
- Any apology letter or Duty of Candour notification
- Any NHS complaint response you have received
- A brief personal timeline of events — what happened, when, who was involved
Frequently asked questions
What if I cannot get hold of my medical records?
Your solicitor can obtain records on your behalf under UK GDPR. If a provider fails to comply, your solicitor can enforce access. Records can also be obtained during the claim through formal disclosure obligations.
How long does the evidence-gathering stage take?
Obtaining records typically takes four to eight weeks once requested. Commissioning an expert report takes a further three to six months in most cases. The total evidence-gathering stage before a Letter of Claim can be sent is typically six to twelve months.
Can records be used even if they were made after the incident?
Yes. Subsequent records — including records of complaints, Duty of Candour notifications, and later treatment — are all relevant and may support the claim.
What happens if the defendant disputes the expert's opinion?
The defendant will instruct their own experts. In that case, experts on both sides exchange reports and often meet to identify points of agreement and disagreement. A judge decides any remaining disputed issues at trial, although most cases settle before reaching that stage.
Do I need to gather evidence before speaking to a solicitor?
No. You can approach a solicitor with only a general account of what happened. The solicitor will identify what records are needed and request them on your behalf.
Related guides
- How to prove medical negligence
- The medical negligence claims process
- Medical negligence claims — complete guide
- Medical negligence time limit
- No win no fee funding explained
Sources & further reading
Primary statute, case law and regulator guidance referenced in this article.
- UK GDPR — right of access to personal data (including health records) — Information Commissioner's Office
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 — Case law
- Bolitho v City and Hackney Health Authority [1997] UKHL 46 — Case law
- Montgomery v Lanarkshire Health Board [2015] UKSC 11 — Case law
- Pre-Action Protocol for the Resolution of Clinical Disputes — Ministry of Justice