Showing posts with label clinical. Show all posts
Showing posts with label clinical. Show all posts

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

Director of Clinical Photography UK and Clinical Photographer at Leeds Teaching HospitalsUKE-mail: 




IntroductionSection:
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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 SplitSection:
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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’ PhotographsSection:
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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 AgenciesSection:
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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 ExpertsSection:
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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.


ConclusionSection:
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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 readingSection:
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  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. . Medical Expert Witness Independence. The Law Society Gazette Thursday 25th October 2012.
  3.  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.  Photographic measuring scalesJournal of Visual Communication in Medicine September 2012, Vol. 35, No. 3, Pages 152154.



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

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. 

Wednesday, 8 May 2013

IMAGES IN MEDICINE EVENT - Thursday 9th May













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:

Monday, 17 December 2012

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)




[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)




Monday, 26 November 2012

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