EVERY PICTURE TELLS A STORY

Here is my recently published interview on the use of photography in Personal Injury and Clinical Negligence Claims for the PI Brief Update Law Journal (PIBULJ)

Jamie Clarke

Barrister at Hardwicke

Interviews

Tim Zoltie

Clinical Photographer & Proprietor of Clinical Photography UK

On the use of photography in Personal Injury and Clinical Negligence Claims

JC; What are the benefits of clinical photography in personal injury and clinical negligence claims?

TZ; The physical appearance of certain injuries is one of the key aspects in determining severity and, as I understand it from your perspective Jamie, valuation. As such, the importance of accurate and legitimate clinical photography is paramount to portray the injury in its current state, or at various stages of recovery. Clear, detailed photographs no doubt help, but the current market has still seen a decline in quality of medico-legal photography. This decline comes down to a vast amount of photography practitioners undertaking expert witness instructions for medico-legal photography. Clinical photography for Personal Injury and Clinical Negligence claims must be standardised, and must be impartial. I also want to get the message across that it is specialist work.

Steve Walker, the retired chief executive of the NHSLA, recently speaking at the Expert Witness Institute annual conference, stated expert witnesses appearing for both sides in clinical negligence claims could become the norm. He called for expert witnesses to show ‘honesty, integrity and impartiality’. Applying this to medico-legal photography should not be treated as an abstract correlation, because the key principles are essentially the same. A photograph of an injury must provide both Claimant and Defendant Solicitors with an accurate and impartial view of the deformity or injury to contextualise severity and aid in the accurate valuation of quantum. This can essentially only be achieved through the standardised use of affiliated expert clinical photographers.

JC: I think most practitioners understand that it is not suitable simply to use any professional photographer to take clinical images for medico-legal purposes, but perhaps you could give your perspective on that.

TZ: I agree that whilst most practitioners understand it is not suitable to simply use any professional photographer, with the growing use of agencies in personal injury and clinical negligence claims this has become even harder to ensure. Many practitioners are also finding themselves in a situation whereby they are trying to locate a relevant photography expert close to their Claimant. This is not only time consuming, but any photographer can state they do medico-legal work, and it is therefore difficult to evaluate the expertise of that person in the field of medico-legal photography.

JC: In my opinion, any image submitted as part of a claim by a commercial photographer or professional photographer other than a specialist clinical or forensic photographer may not be satisfactory evidence for forensic purposes.

TZ; True, and this is where a distinction must be made between a professional photographer and an expert witness who is suitable to provide a medico-legal photographic report. A professional photographer is defined as a photographer who makes a living out of the craft. An expert is someone who has a high degree of skill and knowledge in a particular field through practice and education. A professional fashion photographer may know how to colour match skin tone, but may lack knowledge on how to shoot a macro close up or knowledge of anatomical positioning. A clinical photographer will know how best to accurately portray an injury through specific lighting techniques and equipment choice to display contour, deformity and shape. They will also have an in depth knowledge of legal and ethical issues surrounding image manipulation, sensitive subject matter and data protection. In the case of medico-legal photography, a qualified clinical photographer can therefore be classified as an expert. He or she can provide sound evidence, backed up by knowledge of the methods, protocols and techniques used.

JC; So who are expert clinical photographers?

An expert clinical photographer refers to a photographer who is either a Registered Medical Illustration Practitioner (Registered Member of the Institute of Medical Illustrators), certified by CAMIP (The Committee for the Accreditation of Medical Illustration Practitioners), or a clinical photographer working within a hospital medical illustration department.

JC; You have mentioned technique earlier, but what are your thoughts about equipment for the purpose of clinical photography? It struck me that although digital cameras and smartphones have improved immeasurably in recent years in terms of resolution, the built in flashes even in mid range DSLRs are abysmal, and I frequently find that lighting is an issue

TZ: Yes, that is a common problem. Even though consumer digital cameras may automatically detect a close up object, or alternatively pick out a face, full control over camera and flash settings are lacking. It is this full manual control which enables an accurate standardised result to avoid common mistakes such as the use of automatic pop-up flash to light the subject. There are many contributing factors which lead to accuracy and effective documentation of an injury; Control of lighting is important to avoid unnecessary shadow and reflection, full manual camera settings help avoid perspective distortion and subject distance enables injuries to be seen in context. In clinical photography these are primarily governed by institutional, governmental, and local departmental protocols which enable national standardisation.

JC: What is the major concern about clinical photography?

TZ: Every picture tells a story.......but is it the real story?

A common phrase used in photography is that ‘every picture tells a story’. This phrase is certainly true in the case of Alfred Eisenstaedt’s ‘The Kissing Sailor’ which encapsulated the story of V-J Day with an iconic image of a woman being kissed by a sailor. However, behind every photograph there can be doubt as to its authenticity. In the case of Eisenstaedt’s image; Was the scene an elaborate set up to evoke the emotion he intended by the use of staging and choice of background? Or was the image an accurate portrayal of what took place at that decisive moment?

Doubts about whether or not an image is genuine are legitimate, all the more so with with advancements in technology and ease of use. The capacity to alter and manipulate digital images in such a way as to deceive the viewer is a contentious subject. The authors of The Fifth Report: ‘Digital Images as Evidence’, produced by the House of Lords Select Committee of Science and Technology, described the ability to manipulate a digital photograph as ‘both a great advantage and a severe problem’[1].

Advanced technology enables a photographer to capture, store and display digital images without the use of film or paper[2]. As digital photographs exist only as data[3], unlike film photography, no film or materials are used in their capture. This creates a question as to the authenticity when reproduced in printed form or displayed on a monitor, as alteration of the original data can occur. Any doubts about the authenticity of an image may render it inadmissible in court, or even jeopardise a case.

Given the absence of any clear distinction between acceptable and unacceptable manipulation, each individual case is treated on its own merit. For an image to be conclusive the authenticity has to be proved. The best method of this is by oral evidence from a relevant professional expert witness to testify that in his or her professional expert opinion the images are a true and accurate record of the injury presented. Part 35 of the CPR therefore applies in this circumstance, and a declaration to this effect should accompany any evidence provided by any expert witness. 

JC: Tim, is it possible to scrutinise the metadata to determine whether or not an image has been manipulated or altered?

TZ; It is true that meta-data can be scrutinised and provide detailed information such as the date the photograph was taken, the subject distance, as well as if the file has been modified. The trouble with this meta-data is even the slightest manipulation such as rotation of the image would mean a modification and there is no way of telling how the image has been modified. Another key questionable factor behind the legitimacy of digital photography is that manipulation of the end result can be achieved long before the shutter is even pressed, by the photographer’s choice of lens, camera setting and light source.

JC: have you any advice for solicitors when instructing expert photographers?

TZ; Currently most medico-legal photography is undertaken by either the claimant themselves, a medical expert, or a commercial photographer outsourced by a legal service agency. It is in my opinion that these do not constitute an ‘expert witness photographic report’, but more simply provide visual documentation noting a Claimant’s injury, and as such should not be used as evidence but for reference only.

When instructing a photographer to document a Claimants injury, Claimant solicitors must ensure a qualified clinical photographer is instructed. This will help achieve national standardisation, ensure legitimacy, and avoid inadmissible evidence whilst ensuring legal protocols are adhered to. Defendant Solicitors must also be alert to the risk of image manipulation and accuracy and the various methods of image manipulation during the photography process.

It should also be noted that photography can be instructed at any point through the litigation process but the instruction of an expert clinical photographer early on in the process may provide added value when applying for a pre-med agreement and avoid extensive medico-legal expert fees in the long run. Bearing in mind the healing process, a series of photographs over time will doubtless assist the court. With the Jackson Reforms shortly coming in to play, and increased questioning around the competency of expert witnesses, now is the time ensure the instruction of expert clinical photographers to accurately and legitimately document a Claimant’s injuries.   

Tim Zoltie is the proprietor of the company Clinical Photography UK, a leading agency providing medico-legal photography by the use of expert clinical photographers across the UK. (www.clinicalphotography.co.uk)

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[1] The Fifth Report - By the Select Committee appointed to consider Science and Technology - ‘Digital Images as Evidence’. Website: http://www.publications.parliament.uk/pa/ld199798/ldselect/ldsctech/064v/st0502.htm. Accessed June 2012.

[2]  Roderick T. McCarvel ‘Digital Photography as Legal Evidence’  1995. Website: http://www.seanet.com/~rod/digiphot.html#III1 Accessed June 2012

[3]  Mikkel Aaland with Rudolph Burger, Digital Photography 7, 80 (1992)

'PHOTOGRAPHIC EVIDENCE' LAW GAZETTE ARTICLE

Thursday 13 December 2012 by Tim Zoltie

PHOTOGRAPHIC EVIDENCE

The term ‘conversational distance’ is often used in personal injury and clinical negligence claims to describe the measurability of the prominance of a scar or deformity. It is deemed suitable for this purpose, yet in medico-legal photography it has no meaning.

It is clear that ‘conversational distance’ is not a descriptive measurement, so why is the term used so often? The term provides a suitable description of an injury in its context. A claimant’s physical scarring may play a large role in the assessment of quantum, and a medico-legal report or a solicitor’s notes must provide details on how it appears. For example: ‘The claimant has a two-inch scar prominent at conversational distance on the left lateral of his right thigh.’

While conversational distance is worked out at an average distance of one metre, the need for accuracy is minimal. The statement is only aimed at pointing out the scar can be seen from a short distance away and as such is suitable for this purpose. As clinical photography is strictly about accuracy and measurements however, this term as currently applied in claims is too broad to provide any sense of standardisation, and this distance can not be identified or repeated. When an instruction states: ‘Please photograph the left lateral of our claimant’s right thigh from conversational distance,’ the question becomes is this the distance from which to photograph the subject? Or is it how much of the claimant’s body is in shot?

The key element of clinical photography is standardisation. It is key to providing the accurate portrayal of an any lesion or injury, using standard operating procedures to ensure all photographs are correctly scaled, colour balanced, and can be held in comparison to one another. A standard operating procedure in the case of clinical photography is developed through local and field specific protocols, involving specific distance measurements, flash and camera settings.

When photographing a lesion, a clinical photographer will photograph a ‘locator’ and a ‘close-up’. While a close-up is defined by the size and scale of the lesion, the locator is defined at a set subject distance. The principle behind a locator is to identify the location of the lesion and view it in context to the rest of the body, thus having a similar purpose in principle to ‘conversational distance’. The difference between them however, ‘conversational distance’, has no defining measurements, while in clinical photography a ‘locator’ has a set scaled subject distance which is measured by the use of a SLR’s fixed focal length lens.

Subject distance, lens choice and camera settings all play a major part in photographic reproduction and can have a large effect on how an injury is portrayed. Subject distance in this case can be altered by simply including more of the body in frame, thus reducing the size and impact of the scar. For example, a scar on a wrist photographed at ‘conversational distance’ would look very different if the full arm was in shot, or just the hand and wrist. The distance therefore would need to be clarified. Alternatively taking the photograph at conversational distance would vary greatly depending on what lens was used. The brief is therefore decided by the photographer who is effectively deciding on how much of the body to include in the frame.

In clinical photography this is worked out by set protocols and standard operating procedures which are broadly defined by a locator and a close-up. The locator being pre-defined areas of the body which are shot dependent on which area the lesion is located. While these protocols may vary slightly between clinical photography departments, the overall result is the same: a standardised repeatable result is achieved. If all medico-legal photography were shot in this manner, standardisation could be more easily achieved.

A different perspective

So, the photography of a claimant’s injuries for a personal injury or clinical negligence claim can vary greatly depending on the settings used to produce the final image. As each variable can substantially alter the final photograph, there is a high possibility that any photographic evidence submitted may be inaccurate or even misleading. Perspective distortion is one of these variables, and is also a prime example of how photographic images can be manipulated even before the images are captured in digital format.

The above two images were both shot on the same camera (Canon EOS 5D Mark II digital SLR), with the same lens (Canon 24-105mm f4 IS) at variable focal lengths. The left image was photographed at 35mm, and the right at 100mm. This is a prime example of perspective distortion. As you can imagine, in terms of expert witness evidence the difference between the two above images could be paramount. Say for example, the above image was taken to portray the physical features of the nose for a clinical negligence claim against a surgeon following a rhinoplasty operation.

The image on the left would suggest an extenuation of the nose and in context, appears substantially large in relation to the face. This is therefore quite misleading. To avoid this distortion, the photographer must increase the subject-to-camera distance, providing a more accurate result and avoiding distortion. This would then display the nose in its true context at the correct focal length.

Tim Zoltie is clinical photographer at Leeds Teaching Hospitals and proprietor of Clinical Photography UK

DISBURSEMENT OR DAMAGE?

Recently on Linkedin I posted a poll in the UK Personal Injury Lawyers group. Some interesting responses and comments were made so I decided to re-post on my blog;

Do you think instructions for medico-legal photography of a claimants injuries can be justified as disbursements? or can only be classed as special damages? 

• Disbursements: 16 Votes (100%)

• Special Damages: 0 Votes (0%) 

Tim Zoltie • In alot of cases this is often overlooked and any photographer instructed to photograph a claimant is simply put down as a special damage.When undertaken professionally by a specialist clinical photographer, it becomes an expert photographic report used as evidence and can therefore arguably be justified as a disbursement. 

Michael Henry • It seems my vote went the same way as everyone else did on this so far. An interesting point comes to mind. If being classified as an expert report and therefore disbursements cost the question that will on any costs assessment or negotiations then arise is whether formal court permission was given by the court for the use of such expert. Could it be argued as incorporated within the permission for say the Orthopedic Consultant or plastic surgery medical expert if for example they make use of the same in considering the matter and preparation of their reports? 

I am afraid my own experience on this aspect is modest but simply throw the thought out there. Do such experts routinely sub contract the taking of photographs they incorporate into their reports? which would presumably pick up the cost within their overall fee for the preparation of the report. I suspect the plastic surgeon report I got recently incorporated photographs taken by the plastic surgeon expert himself rather than utilising an expert clinical photographer.

John Wardley • I really don't like the phrase "no brainer" but IMHO it's one of those. If it is part of the evidence gathering process rather than a loss suffered by the claimant then it must form part of the legal costs rather than of the damages and as it's not solicitors' work delegated to an agent it must be a disbursement rather than profit costs. This would be the case whether using a specialist medical photographer or a good professional photographer who knows what is required. Use of lighting properly is essential to obtain the most accurate effect. I have never had such an item challenged on detailed assessment. But as ever happy to hear contrary views.

Robert Godfrey • I agree with John(above) on this. The photographs will be signed by the photographer and if needs be he/she could be called to give evidence like any other expert. 

As such it should be a disbursement.

Sue Nash • I too agree with John

Andy Shaw • Absolutely agree with John. It is a disbursement as it is evidence not an item of loss. In my experience, such photographs can form part of the plastic surgeons evidence. If he or she takes or recommends that photographs are needed and is prepared to confirm the photographs are an accurate representation of the injury when the report was prepared, they can form part of his or her evidence.

Gary Knight • With John et al on this one

Michael Pace • but if the client had them taken and paid for them before seeing a solicitor then it can go in the specials. it really doesnt matter as one way or the other the defendant has to pay. some solicitors claim travel to see an expert in the specials, some put it in disbursements as a legal cost. only thing that matters is getting it paid for.

Michael Mylonas QC • Definitely a disbursement. Raises interesting questions about the use of photography (and icnreasingly of videos) in cases. Still photos can be edited very easily nowadays to emphasise certain features (reddening/inflammation is an obvioius one). In additon, some of teh more clued up clinicians will take photos during surgeries even if they are not instructed as experts because they realise that contemporaneous evidence of findings in surgery will be useful later. More likely in PI than in clin neg cases. 

In the end of life cases we deal with the video evidence of nursing staff and family engaging with patients is often at the very heart of any judgment about treatment and best interests. Apologes for hijacking the thread butthe importance/value of photographic evidence is often overlooked.

Robert Godfrey • Not hijacking at all Michael, as you point out there are wider issues on this which is appropriate.

Pasha Alnadaf • Yes, I agree too. If the photos were taken by the Claimant at a cost then this is a special damage. If the photos were instructed by the solicitors then this is a disbursement.

Ashi Arora • I concur with Pasha.

Andrew Kirkpatrick • Sorry but I don't. No reason at all why it should not be a disbursement even if photos commissioned by claimant. There is caselaw to suggest that the claimant's travel costs to see an expert should be claimed as a disbursement and not as specials and the same applies here. 

Tim Zoltie • Thank you for all your comments and good to see a general agreement across the board over this. I completely agree with Michael In that the importance of accurate and fair clinical photography is often overlooked. I'm currently writing an article on the importance of clinical photography in personal injury claims and would love to hear any feedback as to it's impact on cases they have dealt with. Please inbox me. 

abdul hafezi • if you are referring to instruction from a lawyer, it is time recoverable and is not a disburtment.

Nik Ellis • We do a great deal of injury photography & it is almost always treated as a disbursement by our instructing solicitors.

Tim Zoltie • I have researched this a little further. For some clarification, The Civil Bill Assessment Manual (October 2003) by the Legal Services Commission (LSC) defines the regulatory framework for assessing fees to make a fair and reasonable assessment of costs claimed. They state there is clearly a varied amount of disbursements that can be made but must be reasonable to incur and must be reasonable in amount. Under section ‘3.17: Disbursements’; ‘authority may be sought to cover the preparation of a plan or photographs of either the injuries or property in connection with the proceedings'.