Medico-legal Photography

Friday 29 November 2013

Medico-legal Photography: Understanding the importance of a clinicalphotographers role

Professional Development in Medico-legal Photography: Understanding the importance of a clinical photographers role

June 2013, Vol. 36, No. 1-2 , Pages 82-85

Tim Zoltie

Director of Clinical Photography UK and Clinical Photographer at Leeds Teaching Hospitals, UK,

E-mail: info@clinicalphotography.co.uk

Introduction	Section:

The use of photography in a Personal Injury or Clinical Negligence case in the UK is not a new concept. What is surprising is that despite this, and despite the importance of accuracy and legitimacy, clinical photographers are not the legal industry's sole providers.
Many from the profession are quick to defend the expertise of clinical photographers to the many clinicians picking up a camera and performing photography themselves, yet in the area of medico-legal photography the same expertise are not championed with as much rigour. In recent years this area of photographic work has been subject to increased competition. There are many perceived reasons for this; perhaps it is down to the legal professions lack of regulation over expert witness evidence, or lack of capacity in medical illustration departments and the fact that external advertising has low departmental prioritisation. Reasoning may be that efforts are currently focussed on issues surrounding the lack of statutory regulation and acknowledgment as healthcare professionals within the UK National Health Service.
The area of medico-legal photography is a valuable commodity for both the clinical photography profession and the legal industry. External departmental contracts are valuable in providing assurances to local NHS trusts on the ability to provide income generation from outside sources which can be offset against internal running costs. This is especially the case in departments which do not benefit from additional income from the amalgamation of a regional retinal screening or ophthalmic imaging service. The benefit to the legal industry is clear; the provision of legitimate, concise, and unbiased evidence.
Personal Injury law is currently experiencing major changes with the planned introduction of the Jackson Reforms¹. The competency of expert witnesses is also becoming increasingly questioned, with the need for improved independence of medical experts highlighted², and the increase in the use of a single joint expert becoming possible³. Against this background, the national standardised provision of non-biased legitimate photographic evidence provided solely by expert clinical photographers is not an unachievable objective.
One may think therefore, that the solution is to take a more pro-active approach to advertising, but the standardised use of clinical photographers for medico-legal photography will be achieved only through promoting the professions expertise over its services.

The recent IMI ‘Find a Professional’ service is a step forward in promoting a department's services externally, but to raise awareness requires professionals to actively engage the legal industry. To do so an understanding of the market is required, along with knowledge of the current methods by which a claimant's solicitor acquires photographic evidence of a claimant's injury. The methods by which photographic evidence can be manipulated should also be addressed. The rise of social media such as online videos and blogs has provided a series of viable platforms on which to express and circulate ones views. Published articles aimed at the legal sector are also an effective method of sharing expertise whilst simultaneously raising awareness of the clinical photography profession.

The Market Split	Section:

When looking at the current practice of obtaining photographs of a claimant's injury, there are four main sources, namely: the claimants themselves, legal service agencies, medical experts, and clinical photographers. It is extremely difficult to calculate any figures relating to the market share of these groups, but the avenues for acquiring medico-legal photography may possibly be leading to an adverse effect on a claimant's case; causing; loss of time, increased costs, decrease in damages awarded, inadmissible evidence, and most importantly; possible breaches of legal protocols, this is an area that requires further investigation.

Claimants’ Photographs	Section:

Common practice for documenting a claimant's injury is the use of photographs provided by a claimant themselves. It is a concern however that it is likely that these ‘self portraits’ are quite often captured using the camera on their mobile phone. This method can be time and cost effective, keeping damages down whilst providing a Solicitor with immediate documentation of a Claimants injury. The increase in using images taken on these to be submitted at trial may however lead to several negative implications:
The two key issues are;

A claimant could have a certain bias towards how an injury is documented, and this has to be confronted when a solicitor submits images for counsel or as evidence as the claimant may try to alter or manipulate the image(s) using smart phone ‘apps’ and filters to apparently increase the severity of the injury in order to be awarded higher compensation.
Where photographic skills and high specification camera technology is lacking the claimant may fail to adequately portray the subject and fail to provide an accurate record, which in turn will lead to a reduction in the damages awarded. There is also the possibility the images may not be accepted by Defendant Solicitors as an accurate record of injuries sustained.

Legal Service Agencies	Section:

Legal service agencies have grown at tremendous speed and are arguably main competitor for clinical photographers.
As a solicitor's client base can be nationwide, it can be very difficult to source and instruct a local appropriate expert witness or specialist in the aquisition of evidence to help assist a case. This shortfall was filled by the inception and instant growth of Medical Reporting Agencies (MRAs), who built up a network of expert witnesses and enabled solicitors to instruct them to source a relevant expert on their behalf. This was swiftly followed by legal service agencies offering supporting services such as national locus sketch plans and accident investigations. Many of these firms were fast to acknowledge the demand for medico-legal photographic reports, whilst simultaneously noticing the lack of registration needed to undertake them. This ungoverned area of professional photography thus enabled them to extend their services by establishing a network of ‘professional photographers’ across the country to outsource the medico-legal photography instructions they receive. The term ‘professional photographer’ is used broadly to describe any photographer who charges for photographic work carried out. This has inevitably led to a vast array of photographers from other disciplines offering to undertake photography of scarring and serious injuries as a sideline should a claimant reside in their area. The problem is that quite often the instructing party is unaware of the area of expertise of the photographer carrying out the work.
In some circumstances the legal service agencies are approaching clinical photography departments. This does mean that clinical photographers receive a proportion of the outsourced work, however the instructions given do often not fall in line with the guidelines the clinical photography profession has in place which have been developed extensively to ensure legal and ethical protocols are adhered to. The instructing party is often simply satisfied by the statement that the work is carried out by a ‘professional photographer’ who is compliant with part 35 of the CPR (Civil Procedures Rules) in terms of providing expert witness evidence⁴. In principle this is all that is required. The clinical photography professionals could be the first to address this issue, bridging the gap between what it legally required for expert evidence, and what is legally permissible in a clinical setting.
What should set a clinical photographer apart from a photographer in a different discipline is the expert knowledge acquired in areas such as anatomical positioning, advanced techniques in documenting injuries, consent, the importance of standardisation, and the extent of manipulation permissible.

There is currently no precedent in the UK questioning the legitimacy of photographs used as evidence in a Personal Injury claim, however this does not mean they are not questioned prior to reaching the Courts, such as in preliminary hearings and quantum assessments. There also still remains the future possibility that images may be questioned as to their accuracy and their authentication when the broad spectrum of expertise in the industry is highlighted by defence solicitors and barristers.

Medical Experts	Section:

Medical experts who include photographs as part of their report have always been a problem. The advancement in technology and ease of use have led to practitioners picking up their digital cameras and photographing patients and private clients themselves. The negative implications of this are vast, and are similar to those engendered when pictures are taken by the claimant or by a non-clinical professional photographer. Medical experts have different levels of photographic knowledge, in turn producing a wide variation in quality. Many authors have touched upon this and namely Mark Bartley's argument is that as a profession, clinical photographers should ‘constantly strive to achieve the highest level of professionalism, sophistication and technological competence’; In this case by the appropriate use of digital scales⁵. This, along with the development of other practical procedures, is a prime example of how the clinical photography profession can continue to lead the way through education and practice in an area that is subject to increasing competition from other agencies.

The advantages to a medical expert undertaking this work cannot, however, be ignored. They have the ability to include photographs in the one report. By taking the photographs themselves they avoid the need for a separate specialist clinical photography instruction. A negative point is the apparent difference that may be formed between a medical report and the inaccurate photographs of a claimants injuries accompanying it. An example of this is a medical expert mentioning a small but visible scar in the report, however struggling to illustrate scar without the use of specialist equipment such as a macro lens. This will lead to the report noting a scar, but the resulting photographs not showing it. Whilst medico-legal experts may have a thorough understanding of the injuries sustained and how to describe them in writing, they may lack the expert knowledge skills and techniques in how to portray them photographically.

Conclusion	Section:

It is the author's opinion that Medico-legal photographs produced by a professional clinical photographer should be classed as an ‘expert witness photographic report’ and should be classed accordingly and the author would be interested in setting up a special interest group within the profession in order take forward these ideas. Whilst there currently may be plenty of ways of obtaining photographs of an injury, there should now be a campaign for national standardisation in the UK led by the clinical photography profession. Success would be measured in the increased use of qualified clinical photographers in claims where the images are being used as evidence and to assist counsel in their assessment of quantum. Responsibility will rely on promoting the expertise of clinical photographers through literature and online information whilst working closely with expert witness registers and academies. The reputation clinical photographers hold for accuracy and legitimacy in portraying injuries photographically should clearly indicate this method of acquisition as the UK standard.

References and further reading	Section:

‘Proposals for the Reform of Civil Litigation Funding and Costs in England and Wales’ by Lord Justice Jackson. Ministry of Justice (MOJ) Consultation paper CP 13/10 November 2010 (http://www.justice.gov.uk/downloads/consultations/jackson-consultation-paper.pdf)
Pearce. D. Medical Expert Witness Independence. The Law Society Gazette Thursday 25^th October 2012.
Walker, S. The Law Society Gazette (http://www.lawgazette.co.uk/news/no-more-open-chequebooks-expert-witnesses-conference-warned) Accessed November 2012
Ministry of Justice Civil Procedure Rules (CPR): Part 35 - Experts and Assessors. Website: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35 (Accessed December 05th 2012)
Bartley, M. Photographic measuring scales. Journal of Visual Communication in Medicine September 2012, Vol. 35, No. 3, Pages 152–154.
Abstract

Friday 20 September 2013

WEAPONS OF MASS DISTRACTION: Personal Injury Photography Tips to Avoid Distracting Elements

Personal injury photography can often be comical in its acquisition. Check out the following examples of unusual personal injury photography....

All too often does an image of an injury detract from its primary purpose of providing an accurate depiction of severity to cause an unnecessary and sometimes comical portrayal of subject matter.

In Personal Injury photography the subject being documented must capture the attention of the viewer by minimizing focus elsewhere and avoiding any comical aspects which may detract from its purpose. To achieve this one must control any distracting elements such as background, jewellery, clothing and client posture/expressions. The viewer is unlikely to want to see a clients book collection, floral sofa pattern, or pink new crocodile shoes and ‘I Love Jesus’ socks. Facial expressions and posture can also create a quite comical effect and detract from the importance of the image.

To avoid background distractions a clear, clean non reflective white, black, green or blue cloth should be used. (Other coloured backgrounds can reflect colour casts onto the subject and may often clash with skin tones)
All clothing and jewellery in the vicinity of the subject much be removed. This is important in portraying the location of the clinical subject in relation to an identifiable part of the body. A photograph of a scar on a clients thigh without the knee cap in shot (either covered by clothing or out of shot) may fail to portray prominence.
All clothing and jewellery in the vicinity of the subject much be removed. This is important in portraying the location of the clinical subject in relation to an identifiable part of the body. A photograph of a scar on a clients thigh without the knee cap in shot (either covered by clothing or out of shot) may fail to portray prominence.

Jewellery and clothing is one of the major contributors of distracting elements not only by distracting the viewer away from the subject but also in displaying an injury out of context.

Whilst avoiding distracting elements may not be the most important factor in accurate personal injury photography, it is largely overlooked in its ability to draw attention away from the subject in a sometimes comical way. This may also possibly lead to photographic evidence carrying less evidential weight in court. Clinical photographer's are trained to control distracting elements through the use of local and national standard operating procedures developed to ensure the subject being documented is the focus of attention at all times.

Disclaimer: To my knowledge the images used in this blog post were not taken by anyone in a professional capacity as part of a personal injury claim. Images used are to highlight similar true to life personal injury photography examples I regularly come across

Image Sources:

http://www.everystockphoto.com/photo.php?imageId=867325&searchId=828de69a2994bdb482cecf9d10c7f5f2&npos=6

http://www.everystockphoto.com/photo.php?imageId=1095060&searchId=828de69a2994bdb482cecf9d10c7f5f2&npos=9

http://www.everystockphoto.com/photo.php?imageId=2661988&searchId=828de69a2994bdb482cecf9d10c7f5f2&npos=50

http://www.everystockphoto.com/photo.php?imageId=1160081&searchId=828de69a2994bdb482cecf9d10c7f5f2&npos=139

http://www.everystockphoto.com/photo.php?imageId=2713185&searchId=828de69a2994bdb482cecf9d10c7f5f2&npos=260

http://www.everystockphoto.com/photo.php?imageId=1172079&searchId=7ff983fb58f776769fdfdc8faa69662b&npos=134
http://www.everystockphoto.com/photo.php?imageId=9693515&searchId=828de69a2994bdb482cecf9d10c7f5f2&npos=1002

Monday 22 July 2013

INSTRUCTING A PHOTOGRAPHER IN A PERSONAL INJURY CLAIM: EXPERT PRACTICE POINTS

Instructing a Photographer in a serious injury or clinical negligence claim:

Practice points from a Clinical Photography Expert

Tim Zoltie BA (Hons) PgC LBIPP RMIP MIMI

Director of Clinical Photography UK & Clinical Photographer at Leeds Teaching Hospitals

A photograph of an injury can be a powerful and effective tool in its ability to depict severity, and its subtle ability to evoke a sympathetic understanding of suffering and pain which would otherwise be difficult to portray verbally or in a written report. Unfortunately for many cases it can also be a hindrance. Poorly taken photographs can lead to inadmissible evidence which may in turn delay settlement. The demand for accurate photographic evidence has now meant many solicitors are turning to the instruction of a photographic expert, but who should be instructed for this work and why?

Any photographs taken are classed as evidence and therefore it is important that only a relevant expert is instructed. A Claimant’s photographs may be poorly taken and fail to depict the injury. They may also be photographed on a mobile phone and possibly manipulated using the many photo editing apps available as the Claimant has an obvious bias in the depiction of his or her injury in its worst state. A medical expert may also fail to adequately portray the injury due to lack of photographic knowledge and professional equipment. A clinical photography expert on the other hand, has knowledge of anatomy and an understanding of how best to portray injury.

Instructing the Right Expert

When enquiring about a possible instruction of an expert, a solicitor must be aware that photography is a relatively ungoverned area. Approach a photography expert with caution, as many photographers will offer to undertake a medico-legal photography report. Photography is a highly competitive industry, and there is little chance of a photographer turning any income source down unless against the law to do so. Ensure your expert is either a Registered Medical Illustration Practitioner (RMIP) or a Clinical Photographer working within a medical illustration department. The expert should have a basic understanding of CPR p.35 and a suitable declaration of compliance. Failure to instruct an appropriate expert may lead to the provision of inaccurate and illegitimate evidence, unethical and unapproved photographic techniques and may possibly result in a claim for negligence. Instructing a qualified Clinical Photographer provides confidence in the knowledge your expert has the ability and experience to document evidence legitimately and accurately following departmental, local and governmental standard operating procedures.

Accuracy and Legitimacy is Key

Up until now knowledge of photographic manipulation has been more relevant in criminal litigation. With the increase of photography to display a claimant’s injuries however, accuracy and legitimacy have had to be addressed. Whilst there is no immediate need to approach all medico-legal photographs with scepticism, a basic understanding of image manipulation techniques should be understood. Manipulation can take on many forms, from pre-photography by the pressure on a wound to cause redness or inflammation, to post-photography by editing images to extenuate severity. Not often is an image questioned as to its authenticity, but images can be highly misleading and a rise in questionable evidence will no doubt prevail with an increase in acceptance of claimant photographs. If an image seems inaccurate it should be questioned upon receipt and a relevant clinical photography expert instructed.

Can it be justified?

The Jackson Reforms have led to a heavy focus on costs. As such, the need for photographic documentation of an injury vs. the need to minimise litigation costs has led to an increased acceptance of a Claimants own photographs. Whilst this may suffice in displaying the scope of an injury it is not an accurate form of documentation and often refused by Counsel and Defendant solicitors, often delaying settlement. If expert photographs can avoid a costly medical report and possibly save time, then an early instruction may enable a more economic method of presenting a claim.

Most specialist clinical photography reports range from £100-£200, and as such can be justified against the value or importance of most cases from fast track to multitrack. As a commercial photographer may charge a similar cost, it creates questions as to whether the level of qualification of the expert is appropriate for the function instructed in the case.

Practice points for instructing a photography expert:

· Instruct an expert early on in the process: this will avoid delays in settlement and provide immediate accurate documentation in order to determine valuation.

· Choose your expert carefully, ensuring he or she is a specialist Clinical Photographer

· If locating a Clinical Photographer proves difficult and time consuming, use an agency that specialise in instructions to qualified Clinical Photographers such as Clinical Photography UK (www.clinicalphotography.co.uk)

· If instructing another medico-legal agency that offers a photography service, ensure they only outsource to clinical photography experts.

· Be detailed in your instruction citing specific areas of interest to document and request scales where appropriate.

· Request two copies of photographic prints, one for file and another for Counsel. Avoid photocopying or printing digital images

· Be cautious of the various methods of photographic manipulation and do not hesitate to question authenticity.

· Ensure all photographs received are accompanied with a declaration that the images have not been manipulated in a way as to deceive.

Tim Zoltie BA (Hons) PgC LBIPP RMIP MIMI

Director of Clinical Photography UK

Clinical Photography UK is the UKs premier agency specialising in personal injury photography by the sole use of qualified clinical photographers.

Thursday 13 June 2013

IS EVERY MEDICAL EXPERT A DAVID BAILEY IN DISGUISE?!

Medical experts are increasingly including (and quite often charging) for photographs as part of their medico-legal reports. This is not only possibly damaging for the claimant in respect of accuracy in quantum assessment, but it is also having increasing cost implications for the solicitor.

I am a specialist clinical photographer and director of Clinical Photography UK who provide national personal injury photography reports by qualified experts. This has led me to critically analyse the current contributors in photography for Personal Injury and Clinical Negligence claims.

I predict many reading this have commonly been on the receiving end of poorly taken photographs by a claimant, commercial photographer or medical expert. Whilst most poor quality images are provided by the claimant themselves, medical experts are generally untrained in clinical photography and lack knowledge of specialist photographic techniques.

As many cases rely heavily on the physical appearance of an injury for either valuation, liability, or both, is an expert the right choice?

To provide an example in context:

A plastic surgeons report on a rhinoplasty may state the Claimant has an obvious inverted V deformity as a result of an unnecessary excision of dorsal cartilage from the septum. An inferior or superior view would provide a more accurate depiction of the V deformity but is often overlooked by a commercial photographer. Whilst the medical expert may include an inferior view as part of his report, without the use of a fixed focal zoom lens the photographs would be shot at varying distances causing subject distortion. This would extenuate the shape and contours of the nose, leading to inaccurate and inadmissible photographic evidence (Please see my law gazette article on perspective distortion HERE).

For a case that relies heavily on photographic evidence of injury such as a subtle cosmetic or serious injury claim; clear and accurate photographs by a clinical photographer are vital.

Looking to the future

Basic training can provide a medical expert with knowledge on exposure, composition, and camera settings. Assuming the expert stores the images according to the DPA and relevant governmental protocols, there is no issue with experts including photographs as part of their report for reference purposes only. These images should not be relied upon for valuation or liability. If photographs are required to document severity or subtle deformity, a clinical photographer should be instructed. . Clinical photography is a specialist subject and also a profession, with hundreds of clinical photographers based at hospital sites around the UK, who are highly skilled and trained in photographing physical deformity and injury. Clinical photographers work on standardised procedures and can provide highly accurate results at roughly the same cost of an expert or commercial photographer. Post Jackson this is undoubtedly a more justifiable solution to documenting injury.

Wednesday 8 May 2013

IMAGES IN MEDICINE EVENT - Thursday 9th May

Location:
Wellcome Collection Conference Centre
183 Euston Road
Camden Road, London

Date:
Thursday 9th May

One day to go before the IMI 'Images in Medicine' event and word has spread widely since the announcement that The Institute of Medical Illustrators (IMI) were to hold a one day event at the Wellcome Collection Conference Centre on Thursday 9th May 2013 to promote the services that professional clinical photographers can offer.

From Clinical Photography & Video to Illustration & Design, there will be a rolling programme of talks and workshops throughout the day.

Barristers/Solicitors/Fee Earners

From a medico-legal point of view, this is a chance to speak to experts in the field who can explain the advantages of using a clinical photographer for Personal Injury photography. There will be examples on show of medical photography by the experts and the chance to see how the profession can benefit the legal industry.

This is certainly looking like a great event.

More information please visit:

http://www.imi.org.uk/event/images-in-medicine-invitation

Tuesday 12 March 2013

IMI IMAGE OF THE MONTH

Institute of Medical Illustrators

IMAGE OF THE MONTH MARCH 2013

Pinguecula by Tim Zoltie

St James University Hospital Leeds

This Image was taken using a slit lamp camera with 40 degree cross light and Nikon D3x attachment. The vignetting was produced naturally with no after effects or manipulation. Image was not taken for a PI or Clin Neg case and is just documenting a clinical condition. It does however show the accuracy involved in photographing difficult subjects and the advantages a clinical photographer can offer when documenting lesions in difficult places. A slit lamp provides macro close ups almost similar to a microscope and can pick up changes on the cornea and external eye conditions difficult to see to the naked eye.

To View the link:

http://www.imi.org.uk/document/image-of-the-month