Disclosure in Clinical Negligence Cases: What to Expect

In clinical negligence litigation, the road to trial is paved with procedure. One of the most significant stages is disclosure, the process by which each party reveals the documents relevant to the case.

For claimants and defendants alike, disclosure can feel daunting. The volume of documents, the legal obligations, and the scrutiny applied all mean that this stage requires careful preparation. For solicitors, expert witnesses, and clients, understanding what to expect from disclosure is essential.

This blog explores what disclosure is, why it matters, and how it plays out in clinical negligence claims.

What Is Disclosure?

Disclosure is the process of identifying and exchanging documents that are relevant to the issues in dispute. Under the Civil Procedure Rules (CPR) Part 31 (for older cases) and Practice Direction 57AD (formerly the Disclosure Pilot in the Business and Property Courts), parties have a duty to disclose not only the documents that support their case but also those that may harm it.

In clinical negligence claims, disclosure often includes:

• Medical records (GP notes, hospital records, nursing notes).

• Diagnostic results (scans, pathology reports, lab results).

• Correspondence (letters, emails between clinicians, referral letters).

• Guidelines and protocols in force at the time.

• Witness statements and contemporaneous notes.

The Duty of Disclosure

The duty is wider than many clients realise. It is not enough to provide only “helpful” documents, both sides must disclose all relevant material.

Key Principles:

• Standard Disclosure: Parties disclose the documents on which they rely, those that adversely affect their own or another’s case, and those that support another party’s case.

• Ongoing Duty: The duty of disclosure continues throughout proceedings. If new relevant documents come to light, they must be disclosed.

• Control: Disclosure applies to documents within a party’s control - whether physical possession or a right to obtain copies.

Failure to comply can result in sanctions, including costs penalties or even the striking out of evidence.

What Counts as a Document?

The definition of a “document” is broad. It includes not just paper records but also:

• Digital files (emails, PDFs, Word documents).

• Electronic health records.

• Photographs and video recordings.

• Databases and spreadsheets.

• Text messages, WhatsApp messages, and other digital communications.

In a modern clinical negligence case, disclosure is often heavily electronic. This can pose both opportunities and challenges.

Disclosure in Clinical Negligence Cases

For Claimants

Disclosure often starts with obtaining full copies of medical records. Solicitors usually request these from GP practices, hospitals, and other providers under the Access to Health Records Act 1990 or the UK GDPR/Data Protection Act 2018.

The disclosed records allow:

• Assessment of potential breach of duty.

• Chronology building (sometimes using pagination services).

• Instruction of expert witnesses.

For Defendants

NHS Trusts and clinicians must gather relevant documentation, including policies, guidelines, and staff training records. These often form the backbone of their defence, showing that the care provided was consistent with accepted standards at the time.

Common Issues in Disclosure

1. Missing or Incomplete Records

A frequent frustration is incomplete records—missing observation charts, gaps in nursing notes, or scans that were never documented. This can complicate claims and may itself be a ground for criticism.

2. Late Disclosure

Documents sometimes surface late in proceedings, which can delay expert reports and trial preparation. Courts take a dim view of unjustified delay.

3. Data Protection Concerns

Patient confidentiality must be safeguarded, so disclosure is carefully managed. Redaction of third-party information is common.

4. Volume of Records

Medical records can run into thousands of pages. Proper indexing, pagination, and chronology-building are essential to make disclosure manageable.

How Experts Use Disclosure

Expert witnesses depend heavily on disclosed documents. Their ability to provide opinions on breach, causation, and prognosis rests on the completeness of the records.

Experts may:

• Review the adequacy of clinical documentation.

• Compare care against disclosed policies and national guidelines.

• Highlight omissions or inconsistencies that undermine credibility.

Where disclosure is incomplete, experts may note that their opinion is limited, or request additional material.

The Importance of Transparency

Courts value candour. In healthcare litigation, disclosure is not just a procedural step but also a test of organisational culture. NHS Trusts are expected to be open and transparent. Withholding or failing to preserve records can damage credibility and even lead to judicial criticism.

Preparing Clients for Disclosure

Solicitors should advise clients that:

• All relevant records must be provided, not just those that seem supportive.

• Disclosure is about fairness and accuracy, not strategy.

• Attempts to conceal or destroy documents can have severe consequences.

Managing expectations early helps avoid tension later in proceedings.

Looking Ahead: Digital Disclosure

The rise of electronic health records and digital communications means disclosure is becoming increasingly complex. New technologies, from secure online portals to e-disclosure platforms, are changing how documents are managed and shared.

For solicitors and experts, this means greater efficiency, but also new challenges in ensuring data integrity, confidentiality, and compliance with CPR requirements.

Final Thoughts

Disclosure in clinical negligence cases is not just about paperwork. It is about building a clear, reliable evidential foundation on which experts, solicitors, and courts can rely.

For claimants, disclosure opens the window onto what really happened in their care. For defendants, it is an opportunity to demonstrate transparency and adherence to standards. For expert witnesses, it is the raw material from which independent opinions are formed.

Handled well, disclosure allows litigation to proceed fairly and efficiently. Handled poorly, it can cause delay, increase costs, and erode trust.

At Apex Experts, we understand the challenges of disclosure. Our experts work with solicitors to make sense of complex records, identify missing material, and provide clear, court-ready analysis.