Practice Points on Instructing a Photography Expert
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.