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.

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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.


Medical Negligence Fact Sheet

Medical negligence is a serious issue in NSW with reports that claims are perpetually on the rise. Today on the blog we’re breaking down medical negligence into easy to understand terms to help you wrap your head around what can be a confusingly complicated issue.

Medical Negligence

Medical negligence is a complicated issue you should seek professional advice about immediately.

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Health care providers have a duty of care when it comes to the treatment and health of their patients. If a patient suffers injury or harm as a result of the inadequate care of a health care provider, then the patient, or at times their family, may be able to make a claim for financial compensation.

Along with medical negligence claims, claims may be also made for ‘failure to warn’ or lack of informed consent, this includes instances of when doctors or medical professionals have not fully outlined and explained the risks involved with a medical procedure, medication or treatment, which the patient if aware of possible risks would have refused.

Medical negligence claims are always complicated. It is crucial to  the vitality of your claim to prove a connection between medical error and illness or harm.

What is medical negligence?

Not all medical errors are by legal definition negligent. Negligence, in the legal sense, is only considered such when a healthcare practitioner has failed to take “reasonable care”. The law doesn’t require that doctors, hospital staff and healthcare providers be infallible, instead that they take “reasonable care” in advising and tending to patients. You may not have a claim if the standard of care that you received is comparable to that of another medical provider in the same field within Australia.

Who pays medical negligence compensation?

All medical professionals are required by law to have Professional Indemnity Insurance (PII), so in the event of accident, injury or harm it is the insurance provider that will pay the cost of any awarded compensation claim.

What does compensation cover?

Compensation by design is meant to reimburse a claimant for their losses. The amount calculated is based on the extent of damage or harm suffered, not the degree of negligence that occurred.

Compensation payments may include:

past and future medical expenses;

past or future wage loss;

home and car modifications;

loss of life expectancy;

costs associated with a trustee managing your money;

damages for pain, suffering and the loss of enjoyment of life; and

personal care or nursing assistance, either by professional agencies or family members.

Are there time limits on a medical negligence claim?

Like with many areas of the law there are time limits on the time between event and claim when it comes to your medical negligence suit. Most Australian state and territories have a three year time limit in which you can claim for compensation.

The three years runs from the time of the negligence or in some cases, from the time the negligence was first discovered.

Claims may be made outside of the three-year limit if the illness caused from negligence was not found immediately.

BPC recommend you seek legal advice when you first suspect medical negligence in order to not miss out due to liability time frames.

What is Compensation Law?

The law can be a tricky thing to unfurl. To really help you get your head around things we try to regularly explain some of the fundamentals. Today we’re taking a quick look at compensation law – what it is and how it works.

Compensation Law

Workers compensation is a complicated thing.

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The WorkCover government website groups New South Wale’s workers compensation system into four key elements:

1.     ‘WorkCover Scheme – provides workers compensation insurance through contracted Scheme Agents to employers operating in New South Wales.

2.     SICorp (through the Treasury Managed Fund) – manages workers compensation, administration and financial liability for most public sector employers except those who are self-insurers.

3.     self insurers – organisations with enough capital to underwrite, pay and manage their own claims. There are strict criteria that employers must meet prior to WorkCover granting a self-insurers licence.

4.     specialised insurers – hold restricted licences to underwrite workers compensation insurance risk for a specific industry or class of business or employers.’

The current system operates through two previous acts, the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. Both acts are designed to assist and protect employees who have become ill or injured as a result of work activities, as well as employers facing litigation.

Worker Compensation may pay for your hospital and medical costs, along with your regular wages, until the time when you can work again. Your employer must be paying a premium in order for you to be covered. You are not automatically covered by Workers Compensation and not all employees are considered ‘workers’ under the relevant state or territory compensation laws. Prior to commencing any job potential employees should ask if they will be covered in the instance of a work-related injury.

The Government site for WorkCover describes that there are two roles in which it plays in the workers compensation scheme

‘WorkCover acts on behalf of the Nominal Insurer, which is the legal entity responsible for the performance of the WorkCover Scheme. The Nominal Insurer contracts Scheme Agents to deliver case management and policy services within the WorkCover Scheme. WorkCover also regulates and manages the workers compensation system, including the licensing of self and specialised insurers and oversight of service providers.’

Under NSW law, employers must have a workers compensation policy in place if they are paying in excess of $7500 in wages per annum, are employing an apprentice or trainee, or are a part of a group for premium purposes. These are businesses that are related entities paying over $600,000 in wages per annum.

If you require more information about workers compensation you should contact your state or territory’s workers compensation authority.

What is Dispute Resolution?

As an active Sydney law firm we regularly deal with dispute resolution procedures. Dispute resolution as a whole represents a wide range of methods through which potential litigants may be able to resolve their disputes. The legal systems provides varying structures for the resolution of disputes; the term itself has come to include the full length of the legal spectrum for dealing with complaints including the extrajudicial forms like negotiation and mediation right through to litigation which will land you in court.


Dispute resolution is best done out of court for all involved.

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The most common options that potential litigants may choose to resolve their disputes include:




expert appraisal;

arbitration; and

litigation (also known as adjudication).

Alternative Dispute Resolution and You

Alternative Dispute Resolution (ADR) is the process of resolving a dispute without judicial determination. An independent third party assists potential litigants to resolve their dispute through negotiation, mediation or conciliation. An ADR does not include any decisions made by a court of tribunal and therefore offers potential litigants the chance to resolve their complaints whilst avoiding costly and time-consuming legal proceedings.

There are three main types of ADR processes in Australia

Facilitative: A dispute resolution practitioner assists the disputing parties to identify the disputed issues, develop their options, consider the possible alternatives to litigation and try to reach an agreement. Entire disputes or sections of a single dispute can be reconciled this way. Examples include: mediation, conciliation, facilitation and facilitated negotiation.

Advisory: A dispute resolution practitioner considers an appraises the dispute, providing advice as to the facts of the dispute, the law, and occasionally, desirable outcomes and how they can be achieved. Examples include: case appraisal, conciliation (where advice is offered or used) and early neutral evaluation.

Determinative: A dispute resolution practitioner evaluates disputes and makes a decision. This can often include the hearing of formal evidence from all parties. Examples include: arbitration, expert determination and private judging.

Litigation and You

While ADR is often encouraged, litigation remains the most common form of dispute resolution in Australia. Pleasingly though, 95% of civil cases commenced in court end up being settled out of court through assisted ADRs like mediation, negotiation and expert appraisal.

In litigation proceedings, parties submit their dispute to the relevant court. The final decision in the litigation process comes downs to the a Magistrate or Judge. Throughout the proceedings it is this judicial officer who remains the official impartial third party, making his or her decision based on the evidence and facts at hand.

The process of litigation can be costly, confusing and extremely time consuming, with much back-and-forth between litigants and their lawyers.

While litigation is best kept as a last resort there are some disputes that require an official judicial decision. These include, but are not limited to, the dissolution of marriage, grants or  probates in respects to people’s Wills, most criminal matters and urgent application where a third party is required to act on your behalf e.g. the federal police when it comes to the removal of a child or financial institutions when you need to withhold payment.