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.
