Effective Use of Medical
Images in Litigation
Author: Les Trachtman, BSEE, JD, MBA | August 8, 2024
The following paper is intended for informational purposes only and should not be construed as legal advice. The information provided in this paper is not a substitute for professional legal advice and should not be relied upon as such. Readers should always consult with a licensed attorney or qualified legal professional for advice on specific legal issues. The author of this paper and any entities associated with the author are not responsible for any actions or decisions taken by readers based on the information provided in this paper.
Ever since June 5, 1895, when James Smith of Denver Colorado fell and injured himself resulting in the landmark decision in Smith v. Grant (1896)[i] establishing the legal precedent for the use of x-rays in the courtroom, using medical images in the courtroom has been an accepted practice of litigation attorneys. Today, the use of digital medical imaging is virtually a prerequisite for cases constructed by personal injury, workers compensation, and criminal attorneys. Smart trial lawyers know that a picture is worth a thousand words and a well-presented digital image can bring an injury or medical condition to life for a jury.
Effective use of medical images at trial requires the attorney have a basic knowledge of what a medical image is as well as how in a timely and efficient manner they can be acquired, stored, viewed and transported to the courtroom for use at trial. Aside from the evidentiary matters of admissibility and authenticity of images, attorneys struggle with the technology required to store and share these images with expert witnesses, colleagues and even opposing counsel in a timely and appropriately secure manner. Medical images are considered protected health information (PHI) as defined by HIPAA[ii] and HITECH[iii], and subject to stringent confidentiality and privacy requirements.
This paper discusses best practices for:
- obtaining and storing medical images
- sharing images with expert witnesses, opposing counsel and other attorneys
- entering medical images as evidence
- displaying of medical images in the courtroom
The Technology Evolution of Medical Images
Medical imaging has come a long way since the discovery of x-rays in 1895, when you probably had to deliver radiography images by horseback. Modern medical imaging began with X-rays machines that worked much the same way that photos are burned on physical film. An image would be projected on a piece of coated acetate and the film would then be developed into an image.
Then, doctors had darkrooms in their offices dedicated to developing x-rays. The images would be burned onto large pieces of film that would be held against a light box for viewing.
As the best option at the time, professionals that needed access to films would have to obtain the actual physical film itself – often the single and only copy. Their physical embodiment added to both their security and authenticity.
Using film for medical images was the best we had until we reached the digital revolution. While physical films were relegated to two-dimensional displays, digitization changed everything. No longer restricted to presentation on film, digital images could now display on a computer, in much more graphic high-resolution, in multiple dimensions. Even a fourth dimension – time - was now possible – enabling viewing pulsing organs and virtual paths through the body.
Digital images transformed the richness of information as well as the storage and transport of medical images. Since these images now consist of a cumulation of bits of digital data, they can be stored and transported electronically.
Obtaining Medical Images from Providers
Not all of your clients will already have the medical images you need depicting their injury or disease. Medical image scans, especially more complex CTs or MRIs are expensive. Not every patient can afford these procedures in advance of bringing or defending a lawsuit.
Often personal injury or medical malpractice plaintiff’s attorneys will need to advance the funding themselves to have the appropriate scans performed. They do this as a part of a host of accumulated up-front expenses that they hope to be repaid from the proceeds of a successful outcome. Sometimes they are in the form of a formal medical lien, enabling a plaintiff’s counsel to ensure repayment in the event of a positive dispositive outcome.
Whether the scan is performed specifically at the attorney’s direction or is already available, the attorney’s next task is to get access to that digital file. This usually occurs by submitting a records request directly to the provider or their ROI vendor on behalf of the client
Many providers choose to enlist vendors called ‘Request of Information’ companies. These organizations are charged with facilitating the fulfillment of medical record requests. They often charge law firms for these requests, but do not always charge the patient.
Compression
Since medical images are so large, often they are compressed to reduce their size for storage or transport. While there are many acceptable methods for compressing image file sizes, they are all distinguished by the characterization of preserving detail. A lossless compression is one that maintains the complete and original fidelity of the image. No information is lost during the compression process. The alternative is lossy compression. Lossy compression usually saves more space (reduces the file size) but gives up a bit of the image’s fidelity.
In a legal context, you want to avoid any images that are compressed using a lossy compression. This both reduces the value of the image but also introduces questions of image manipulation that trial attorneys should avoid. When exporting an image, we always suggest using JPEG2000 compression, a very standard and reasonably efficient compression algorithm, which abides by the DICOM[iv] standard. The DICOM standard applies to virtually every medical image scanned from any modality and is one with which most medical practitioners are familiar.
Turning These Bits Into a Useful Visual Aid In The Courtroom
Copying medical images for transport is a mostly flawed process. Similar to the archaic way we all used to share digital files in the last century, prior to networks and the internet becoming ubiquitous, we still copy these digital files to a disk and then manually carry this disk to the next computer. CDs or DVDs are still the most popular medium for sharing studies. Complex digital images are usually extremely large files, sometimes too large to fit on a CD or DVD. Of course, larger thumb drives are now available. However, all of this media has its own challenges.
Assuming the disk successfully arrives at the attorney’s office, the difficult task begins of trying to view the study and ensure that the image displays what the attorney expects. Many modern computers no longer have CD drives, causing the attorney to scurry around to find one that does. Then, too many times, the disks that arrive are damaged, encrypted, missing information or contain the wrong patient’s records. Even if they do arrive intact and are able to be loaded onto a computer, figuring out how to view the image with either the rudimentary viewer embedded on the disk, or correctly loading it onto the viewer at the lawyer’s office also can be a challenging task. Not every image displays the same way on every viewer and the instructions for use will be different for different viewers, again wasting precious time, money and creating frustration for the non-technical non-medical professional.
Sharing Images
While it may seem paradoxical that these now digital images would have to be converted to a physical form just to send them from location to location, this is still the predominant methodology. And while these disks are a more efficient way to transport images than their predecessor film (disks at least require smaller envelopes), they add a new point of failure and the same old delay that is just not acceptable in today’s connected world.
Too many times we have witnessed disks lost in the mail or disks that were unable to be read, had the wrong information, or were damaged. And while overnight delivery has sped up this process, not having a usable disk in the right place on the day of your trial can be catastrophic. Add to that the increasing cost of overnight transport, and you’ve got a need that is crying out for a new solution.
Multiply these delays and costs by the number of people on the litigation team in various locations that need access to these images – co-counsel, insurance companies, expert witnesses and opposing counsel, and you’ve created an expensive and risky problem.
Firms who handle medical malpractice and personal injury cases find that the time and costs of dealing with CDs add up fast. The video, "What is the real cost of copying a CD/DVD for medical image sharing?" walks through the process of copying a CD with medical images in real time; identifying the soft costs incurred each time you or someone in your practice actually copies a CD/DVD.
As mentioned earlier, another issue that ought to concern counsel is the confidentiality of medical records. HIPAA prescribes a strict level of accountability regarding the disclosure of these images. Once embodied on a disk, these physical items are prone to loss or misplacement. This can be quite problematic for all involved if these medical records get into the wrong hands.
Once the image is copied to a CD or DVD for transport a lot can happen. Leaving the transport task to the patient, who may be distracted by their injury with a whole lot on their minds, ends up with lost or forgotten disks. Overnighting disks wastes precious preparation time and can be expensive. And disks that end up in the wrong hands can be an expensive and embarrassing HIPAA or other privacy law violation.
Sharing with a Medical Expert
In many cases, a successfully acquired medical image will need to be shared with one or more potential expert witnesses for their review and analysis. We can replay the whole imperfect process that we did for obtaining the images from the provider here once again. Cost, delay and frustration often occur.
Attaching a large image to an email to transport it is both restrictive and dangerous. Some email systems choke on the size of the typical DICOM file. Not to mention the lurking HIPAA issue of using such an insecure medium to transport PHI. Using an online service like Dropbox or Box.net may be tempting. With these services your size issue may be handled. But you still are left with a dangerous privacy breach for using this medium unless it too is HIPAA compliant. And, although both may claim to be HIPAA compliant, unless you actually have them sign a BAA, you are still at risk.
Sharing e-Discovery
Once it is determined that a medical image will be used as evidence at trial it is incumbent on the plaintiff’s counsel to make the existence of this evidence known to opposing counsel. Ensuring that this gets handled with the necessary confidentiality as well as making sure that the other side’s attorney receives and can view the same information as the provider-counsel, is also important.
A Better Way
There now is a better way to capture and share digital medical images. In fact, since advances in medical imaging equipment now mean that medical images are growing in resolution and volume to a size that no longer even fits on a CD or DVD. Finding another faster, cheaper and more trustworthy method for sharing and transport is important to the overburdened trial attorney.
The cloud can be just the solution. Cloud storage or cloud PACS as they are often known, are large virtual storage sources where a single copy of the medical image resides. Rather than copying and transporting the image to the constituents that require access, the cloud serves as a single controlled and confidential source for viewing, reading, sharing and archiving these images. Once an original image is sent to the cloud from the modality on which it was generated or from another storage device, counsel never needs to struggle to prepare another copy or begin the challenging disk transport process, reducing the risk, time and expense involved.
Instead, anyone who is given secure credentials and who is authorized to access the image is able to do so from his or her own computer, tablet or even smart phone. There is no need for each to have specialized medical equipment or to take physical possession of the image. Instead, all are pointed to the same location and view the same secure image. This can even be done synchronously in real time with teams accessing the same image in a real-time shared consultation – especially good for expert witness / attorney discussions.
There is no need for costly transport or delays. And when it absolutely positively has to be there, no one sweats it out waiting for their overnight delivery.
Medical Images as Evidence
Digital images face the same process and objections that have been around since the first use of chalkboards and pictures in the courtroom. Following the original premise of the Court in Smith v. Grant, early in the 20th century, most judges adopted the basic procedure applied by Judge Lefevre in that case admitting evidence when:
“a skilled operator, operating with adequate equipment under proper conditions, had produced the particular image.”[v]
Even though imaging technology has leapfrogged into the digital age, judges continue to concentrate on similar ideas: whether the image is what it is purported to be and whether it is authentic or may have been altered in any way. Since digital images like digital photographs are relatively easily editable, modern judges rightfully focus on the chain or custody of the image – how the image was acquired, where it resided until trial, whether it had the opportunity to be altered. Specifically, judges often focus on whether the image has been manipulated, tampered with or edited, or just interpreted differently.
Medical images are usually offered in conjunction with expert testimony. Courts saw a turning point in the admissibility of this type of evidence for the testimony of an expert witness in Daubert v. Merrell-Dow (1993)[vi] under which judges were given a guideline as “gatekeepers” to determine the reliability (and relevance) of such evidence.
To ensure that their medical images are accepted at trial, attorneys are well advised to ensure that they can prove authenticity of the images. Courts generally follow the State v Swinton (2004)[vii] six-part test for computer generated evidence. This test includes ensuring they can prove that the scanning device (x-ray, CT, MRI, etc.) and computer display were operating correctly and with appropriately skilled supervision following proper procedures as well as that the software is reliable and properly programmed. If they are using medical image display software, they should be sure to be able to vouch for the authenticity of the display to accurately portray the original scanned image in an appropriate and genuine manner. It is likely a good idea to obtain affidavits from the technology vendors that the hardware and software operates as suggested and be prepared to offer this at trial to bolster the authenticity of the images.
Displaying Medical Images in a Courtroom
When it comes time to display medical images in the courtroom, there is a wide choice of software available to do just that - ranging from expensive purpose-built workstations that can be expensively dragged into the courtroom, to Windows or Macintosh laptops that run quite powerful (and in some cased free) software, to even a web browser that can be run right on the courtroom’s own display. Many choices of technology are available to assist the attorney in their portrayal of the story that a medical image can deliver. Choose the one that makes your job the easiest while ensuring the images you display are clear and expressive.
Summary
By graduating into the use of 21st century technology, the entire process of obtaining, sharing and displaying medical images can be done simply, efficiently, effectively, and securely. The cloud is a quite useful tool for the trial attorney, saving time, money, and maintaining control over sensitive issue disclosure. Selecting the right tools can make all the difference when trying to ensure your medical image evidence makes a great impression.
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Purview provides medical imaging viewers and cloud storage and sharing to physicians, veterinarians, medical examiners, researchers, students, and attorneys around the globe. Purview is the curator of the HorosTM free open source (FOSS) image viewer that operates on an Apple Macintosh computer as well as Purview Image™ – a native web-based system for capturing, storing, viewing and making medical images easily and instantly accessible from anywhere, anytime, and on any device. As part of its services to legal counsel, Purview provides an affidavit service bolstering the use of any of its products to present admissible evidence in the courtroom.
Footnotes
[i] Golan, Tal. “The Authority of Shadows: The Legal Embrace of the X-Ray.” Historical Reflections / Réflexions Historiques, vol. 24, no. 3, 1998, pp. 437–458. JSTOR, JSTOR, www.jstor.org/stable/41299125.
[ii] The Health Insurance Portability and Accountability Act of 1996 (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996)
[iii] The Health Information Technology for Economic and Clinical Health Act, abbreviated HITECH Act, was enacted under Title XIII of the American Recovery and Reinvestment Act of 2009(Pub.L. 111–5).
[iv] https://www.dicomstandard.org DICOM® (Digital Imaging and Communications in Medicine) is the international standard to transmit, store, retrieve, print, process, and display medical imaging information.
[v] Smith v. Grant (1896)
[vi] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
[vii] Swinton, 847 A.2d at 938
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