Every Picture Tells a Story

An interview between Jamie Clarke (Barrister at Harwicke) and Tim Zoltie (Director of Clinical Photography UK) on the use of photography in Personal Injury and Clinical Negligence Claims

(Published in the PI Brief Update Law Journal)

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?

TZ: 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)