Adverse Inference

An adverse inference is a conclusion a court may draw against a party from that party’s failure to produce evidence, call a witness, or account for a gap in the record that the party was best placed to fill. In medical malpractice litigation the doctrine most often arises in connection with missing, incomplete, altered, or destroyed clinical records.

Where a defendant cannot produce records that ought to exist, or where a material entry is missing, a court may infer that the absent evidence would not have assisted the defendant, and may more readily accept the plaintiff’s account of what occurred. The inference is discretionary rather than automatic, and the strength of any inference depends on the explanation offered for the absence and on the importance of the missing material. The risk of an adverse inference is one reason documentation integrity is so consequential in this area of practice.

Posts tagged Adverse Inference analyze Ontario decisions in which courts drew, or declined to draw, an adverse inference from missing evidence or records in medical cases.