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

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Tim Zoltie

Director of Clinical Photography UK and Clinical Photographer at Leeds Teaching Hospitals, UK, E-mail: info@clinicalphotography.co.uk

Introduction	Section:	ChooseTop of pageIntroduction <<The Market SplitClaimants’ PhotographsLegal Service AgenciesMedical ExpertsConclusionReferences and further re...

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:	ChooseTop of pageIntroductionThe Market Split <<Claimants’ PhotographsLegal Service AgenciesMedical ExpertsConclusionReferences and further re...

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:	ChooseTop of pageIntroductionThe Market SplitClaimants’ Photographs <<Legal Service AgenciesMedical ExpertsConclusionReferences and further re...

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;

1. 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.
2. 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:	ChooseTop of pageIntroductionThe Market SplitClaimants’ PhotographsLegal Service Agencies <<Medical ExpertsConclusionReferences and further re...

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:	ChooseTop of pageIntroductionThe Market SplitClaimants’ PhotographsLegal Service AgenciesMedical Experts <<ConclusionReferences and further re...

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:	ChooseTop of pageIntroductionThe Market SplitClaimants’ PhotographsLegal Service AgenciesMedical ExpertsConclusion <<References and further re...

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:	ChooseTop of pageIntroductionThe Market SplitClaimants’ PhotographsLegal Service AgenciesMedical ExpertsConclusionReferences and further re... <<

1. ‘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)
2. Pearce. D. Medical Expert Witness Independence. The Law Society Gazette Thursday 25^th October 2012.
3. Walker, S. The Law Society Gazette (http://www.lawgazette.co.uk/news/no-more-open-chequebooks-expert-witnesses-conference-warned) Accessed November 2012
4. 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)
5. Bartley, M. Photographic measuring scales. Journal of Visual Communication in Medicine September 2012, Vol. 35, No. 3, Pages 152–154.
   Abstract

Read More: http://informahealthcare.com/doi/full/10.3109/17453054.2013.790010

IMI IMAGE OF THE MONTH

Institute of Medical Illustrators

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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

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

WELCOME

I have to admit I am heavily biased in medico-legalphotography. I strongly believe ALL medico-legal photography should bestandardised by the use of qualified clinical photographers nationwide. Iam biased as I am a clinical photographer at Leeds Teaching Hospitals anddirector of the company Clinical Photography UK (www.clinicalphotography.co.uk), which is a medico-legalagency specialising in expert photography reports for Personal Injury andClinical Negligence claims.

My bias however, does not take away from the argument that aclinical photographer is the obvious expert witness choice to document aclaimants injuries, yet we remain relatively un-used.

Through a series of blogs and published articles, I hope to explainwhy this should not be the case, and campaign for the future standardisation of medico-legalphotography by qualified clinical photographers. I hope to provide insight into the current standard ofphotographic evidence in Personal Injury and Clinical Negligence claims, andhow it can be improved. 

If you have any comments, suggestions, or would like information on any of the subjects posted, please contact me via email: info@clinicalphotography.co.uk