Evidential damage as a result of improper medical records

The article provides a summary of the development and definition of the cause of action described by the Israeli courts as "evidential damage". This cause of action stems from the duty placed on health care providers to keep proper, complete and accurate records of diagnoses and medical treatments administered to patients. This duty was first developed by the courts and then recently codified in the Patients' Rights Law passed in 1996. Initially the courts in Israel recognised that the failure to keep proper medical records could only shift the burden of evidence from the plaintiff to the defendant, but the requirement to show negligence still remained. Eventually the courts recognised that the failure to keep proper medical records, in itself could bar a plaintiff's ability to prove his claim, and therefore they determined this to be an independent cause of action, which can be compensated to the extent of the damage caused by the medical incident which was not properly documented.