Published in The Journal of Visual Communication in Medicine
June 2013, Vol. 36, No. 1-2, Pages 82-85
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.
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.
The two key issues are;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:
A claimant could have a certain bias towards how an injury is documented, and this has to be confronted when a solicitor submits images for counsel or as evidence as the claimant may try to alter or manipulate the image(s) using smart phone ‘apps’ and filters to apparently increase the severity of the injury in order to be awarded higher compensation.
Where photographic skills and high specification camera technology is lacking the claimant may fail to adequately portray the subject and fail to provide an accurate record, which in turn will lead to a reduction in the damages awarded. There is also the possibility the images may not be accepted by Defendant Solicitors as an accurate record of injuries sustained.
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.Legal service agencies have grown at tremendous speed and are arguably main competitor for clinical photographers.
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 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.
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
‘Proposals for the Reform of Civil Litigation Funding and Costs in England and Wales’ by Lord Justice Jackson. Ministry of Justice (MOJ) Consultation paper CP 13/10 November 2010 (http://www.justice.gov.uk/downloads/consultations/jackson-consultation-paper.pdf)
Pearce. D. Medical Expert Witness Independence. The Law Society Gazette Thursday 25th October 2012.
Walker, S. The Law Society Gazette (http://www.lawgazette.co.uk/news/no-more-open-chequebooks-expert-witnesses-conference-warned) Accessed November 2012
Ministry of Justice Civil Procedure Rules (CPR): Part 35 - Experts and Assessors. Website: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35 (Accessed December 05th 2012)
Bartley, M. Photographic measuring scales. Journal of Visual Communication in Medicine September 2012, Vol. 35, No. 3, Pages 152–154.
Read More: http://informahealthcare.com/doi/full/10.3109/17453054.2013.790010