The Use of Photographic Evidence in a Medical Negligence Claim: will they be admissible in court?

Medical Negligence claims are harrowing experiences at the best of times. A medical negligence claim is only going to come across our desk when someone has or is suffering, perhaps, due to the fault of another. Evidence in these cases is crucial, but what is admissible in a court of law?

Medical Negligence

Proving medical negligence isn’t as simple as a snap of the lense.

Image from Shutterstock

Photographic evidence is a court staple when it comes to criminal and civil proceedings. But when it comes to medical negligence claims the area around photographs is a little more grey. Photographs will often appear in court during the course of a medical negligence case. They are displayed to the jury in an effort to support the claimant’s testimony. In the past, these photographs would have typically been taken by members of the police force rather than a forensic physician. In as such, it’s arguable that they are not as good or accurate evidence as a detailed medical record when it comes to proving the extent of injury or illness in an individual.

Move on a bit, and we have a proliferation of affordable camera devices on hand at all times — your Macbook, your smartphone, etc. All these devices come with amateur photo-editing suites, apps and software that a large amount of the populace are highly familiar with and feel comfortable using.

Whilst the accuracy of photographic evidence when images were not taken by a forensic physician was hard enough to prove when factors like shadowing, light and saturation came into play, legal teams now have to prove filters or effects haven’t been transposed over an image causing injury to appear worse than it it/was.

In the end, a physical examination is always considered to have more weight in court that photographic evidence. In cases when it is suspected death was the result of medical negligence the autopsy of a body, even one that has been buried, is considered preferable to photographic evidence.

A case of medical negligence?

In the case of Masters bht Masters v Sydney West Area Health Service[1], Justice Davies of the Supreme Court of New South Wales dealt with an interlocutory application by the defendant to remove the plaintiff’s expert medical opinions on the basis the experts had relied on photographs of the plaintiff where authenticity could not be established.

In this case, the plaintiff, an infant, was born at the Blue Mountains Hospital following a normal birth. The child seemed to be suffering from jaundice some days after the birth. Clinical notes included entries, commentary on the skin tone of the child, made by midwives who were taking care of her. Eventually a blood test was performed finding elevated levels of bilibrium – a finding consistent with the a diagnosis of untreated jaundice. The allegations of negligence focused on the hospital’s delay in diagnosing and managing the condition, leading to brain damage and cerebral palsy, and whether better management and earlier intervention would have avoided the infant’s horrific injuries.

Expert testimony was given on behalf of the plaintiff by both a neonatologist and and a midwife.

The neonatologist initially formed his opinion on the case based on the medical notes made by the staff at The Blue Mountains Hospital. In a later report he also viewed the photos, taken on a standard digital camera by the plaintiff’s father, purported to show a worsening of the child’s condition. The midwife saw both the clinical records and the photographs at the same time.

The defendant argued that neither the neonatologist or midwife had any prior knowledge of portrait photography or editing. Their argument relying on the testimony of the purported expert photographer to cast doubt on the ability of the plaintiff’s father to accurately depict her skin tone at the time the photographs were taken. Consequently they argued that if the plaintiff was unable to authenticate these photos than their expert testimony was inadmissible as they believe the photographic evidence played a significant role in forming their medical opinions.

However, the “expert” photographer proved to be less than erudite in his profession. Justice Davies noted that the defendant’s expert seemed to be inexperienced in the preparation of expert reports and didn’t seem to grasp how the photographs were important to the plaintiff’s claim. He also failed to produce a C.V and failed to define a range of specific photographic terms. His evidence  was ultimately ruled inadmissible by Justice Davies.

The photographs and expert testimony of the plaintiff were allowed to pass before the trial judge; the accuracy of the photographs was to be a matter for he/she to determine.

The plaintiffs were lucky their medical expert’s had already formed their opinions based on the clinical notes rather than on the viewing of the photographic evidence. Rather, the photographs of the plaintiff had only served to reinforce their opinions that delayed treatment was responsible for the degree of her injuries.

What does it mean?

When it comes to medical negligence cases lawyers need to consider that their expert witnesses are not legal professionals. In such, they need to assist their witnesses in the proper preparations of expert reports, ensuring that they are compliant with the requirements of the UCPR and relevant case law. Furthermore, legal professionals must be aware that the use of photographic evidence in medical negligence cases may be inadmissible if expert medical testimony can’t be proven to stand on its own. Photographic evidence is highly susceptible to interpretation and therefore should only be used to support an expert’s testimony, not form the backbone of it.

If you have photographic evidence you feel would be beneficial to your medical negligence claim seek legal help immediately. if you have taken the photos yourself, or they have been taken by a friend or family member, ensure that they are taken in good lighting and have not been edited in any way.


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