Recording Medical Expert Examinations: Risks, Rules and Practical Guidance
Introduction
Medical expert examinations are often pivotal moments in litigation. Patients who have suffered a brain injury may feel anxious, exposed or mistrustful, and increasingly ask whether they can record the examination (especially where their cognitive performance is under scrutiny).
Recording is not inherently improper but it carries legal, strategic and cost consequences. This article explains what to avoid, how experienced lawyers approach the issue and how to make a clear, defensible decision.
1. What not to do
Do not undertake covert recording unless there is a compelling reason. Courts have accepted covert recordings in limited circumstances, but usually only where the evidence is strongly probative and overt recording was refused. Covert recording should never be a default tactic.
Do not record only the defendant’s expert if your own expert examinations are not treated similarly. Apparent imbalance may undermine arguments about fairness.
Do not assume a recording can be kept private. Once created, it is likely to be disclosable.
Do not overlook proportionality. Recording may generate satellite disputes about transcription, storage and disclosure that increase cost and delay.
Do not create unnecessary confrontation. Recording without notice risks damaging cooperation and may distract from the substantive medical issues.
2. Professional judgment
In my experience, the starting point is not “can we record?” but “why do we need to?” Recording should serve a defined evidential purpose (such as addressing your vulnerability, memory concerns, or prior procedural irregularities) not general mistrust.
Where recording is justified, overt recording should be proposed first. Early engagement with the opposing party and the expert reduces the risk of later procedural dispute.
Your lawyer should document their reasoning, consider case management implications, and ensure consistency of approach between experts. A court is more likely to support recording where it is transparently handled and proportionate.
Professional judgment ultimately turns on context: your vulnerability, the complexity of the examination, and whether recording advances fairness rather than strategy.
3. Simplifying the issue
A practical rule of thumb: record openly, for a clear reason, and on the understanding that the recording may be disclosed.
A simple three-step approach can assist:
- Is recording genuinely necessary in this case?
- Can it be done openly and by agreement?
- Are you prepared for the disclosure and cost consequences?
If the answer to any of these questions gives pause, reconsider. Recording should enhance fairness—not create collateral litigation.
Conclusion
The modern approach increasingly favours transparency, but transparency must be managed carefully. Recording expert examinations is permissible where justified, proportionate and properly disclosed.
Handled thoughtfully, recording can protect both claimant and solicitor. Handled casually, it can generate unnecessary dispute and cost. The difference lies in preparation and judgment.
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The Medical Negligence team specialise in serious and complex claims, including brain injury, spinal injury, and life-changing medical negligence cases. We provide expert guidance on medical examinations, ensuring clients are supported, procedures are fair, and cases are managed effectively. For confidential advice on medical negligence or expert examinations, contact our team today on 0330 822 3451 or request a callback online.