Department of Otorhinolaryngology Head and Neck Surgery

Faculty of Medicine - Andalas University

Dr. M. Djamil Hospital, Padang 2014

Medicolegal Implications
of Facial Injuries
Barry L. Eppley, Miriam A. Farley

Chandra - Nur
Facial Plastic and Reconstructive Surgery SubDivision
 As societies  increasingly
litigious, there is a considerable
likelihood that a surgeon treating
patients who have sustained facial
The prominent visibility of the face & its
injuries  will become a
importance to each individual ensures
participant in the litigation
that its physical characteristics and
parocess.
emotional perspective are both highly
valued and guarded.

Facial Plastic & Reconstruction Surgery SubDivision

The physician is providing information on the extent of the wounds,
the care provided and that potentially needed, and any permanent
injury (e.g., scars, dysfunction).

When treating an individual with a facial injury, the surgeon must

be aware that, as the medical record is being created,
simultaneously

This information is useful because it relates to how these issues may

directly affect the care delivered and how such events may be
interpreted in the future.

Facial Plastic & Reconstruction Surgery SubDivision

 Tort Law

Tort law  the branch of the law

through which an aggrieved
individual seeks compensation to
right a wrong that was done to him
(or her) in a civil context, usually the
wrongful act of another person.
However, failure to act when
there is a legal duty to do so
may also subject the wrongdoer
to liability for his omissions.

Facial Plastic & Reconstruction Surgery SubDivision

The most common tort for which a facial reconstructive surgeon
may become involved in litigation is negligence four separate
elements:

The existence of a duty,

Breach of the duty,

Causation (between the breach of duty and harm

suffered)

Damages

Facial Plastic & Reconstruction Surgery SubDivision

Negligent operation of individual suffers
a motor vehicle may injuries from being hit
be the most common by a car operated by
type of tort resulting in another driver, Animal
a facial injury. bites.

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The Treating Physician And Litigation
• When a physician encounters a patient with a facial injury and there is
some suspicion that tort litigation may result, he should be thinking of
his potential role in any lawsuit.

• Documentation is of the utmost importance. This means that records

should be complete, accurate, and without editorial commentmedical
record.

• The presence of underlying medical conditions, such as acute drug or

alcohol intoxication, is a very important part of the initial medical
recordconfirmatory medical test results to support these comments.

Facial Plastic & Reconstruction Surgery SubDivision

Documentation of a facial injury should go beyond a written chart
note / dictated operative report. Exact measurement of all
lacerations should be taken & recorded, either in the emergency
department note or as part of the operative report. Such wound
measurements are often taken anyway,billing of wound closures

Diagrams may be helpful, but preoperative and

postoperative photographs are invaluable and should be
taken whenever possible

Digital photography is the standard. Today’s cell phones have

such good-quality cameras that there is little reason why
photographs cannot easily be taken and transferred to the
patient’s medical record

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The Litigation Process
The treating physician may
expect litigation if the patient
has suffered severe, extensive,
or disfiguring injuries in a
setting of potential negligence

The first concrete indication of

a lawsuit is a request for
medical records made by the
plaintiff ’s attorney.

It should original records be provided;

Copies should be sent, with the original
records kept in the physician’s office, a
patient’s confidential medical record should
never be duplicated and forwarded in the
absence of a properly executed release form
signed by the patient or the patient’s guardian.

Facial Plastic & Reconstruction Surgery SubDivision

 Explain to the jury
Expert witnesses
what is outside the
The role of the may give their
range of knowledge
expert is opinions and are not
of the ordinary
restricted to of facts.
layperson.

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Medical Malpractice

Physicians who are available to speak and listen

patient are less likely to be targeted in a lawsuit
than who do not communicate effectively

If the patient believes that physician cares about his

problem and has made the best effort, satisfaction
usually occurs

Facial Plastic & Reconstruction Surgery SubDivision

 Medical Malpractice

Indiana law defines the

standard of care as that
degree of care, skill and
proficiency exercised by
reasonably careful, skillful,
and prudent practitioners in
Malpractice
the same class to which he
generally consists
belongs, acting under the
of rendering
same or similar
treatment that is
circumstances
“below the
standard of care

Facial Plastic & Reconstruction Surgery SubDivision

 Medical Malpractice

In the majority of jurisdictions, a particular physician’s

medical care is judged by a community standard. This
means that a physician’s care is not compared to a textbook
standard (the “locality rule”).

Facial Plastic & Reconstruction Surgery SubDivision

 Controversies

Digital imaging data

• Patient has a legal right to his can be a two-edged
own imaging information, sword
including pre, intra/ • This situation creates an obvious
postoperative photographs ambiguity between what the
• Patients or families can patient is legally entitled to see
emotionally handle or should be and what the physician thinks is
exposed to such dramatic appropriate for patient
images Digital imaging data
can be a two-edged
sword

Facial Plastic & Reconstruction Surgery SubDivision

 Conclusion
Facial injuries frequently result in medico legal

In any case, proper medical documentation,

both written and photographic, is an invaluable
asset

The creation of written notes and operative reports

should be as thorough as possible and never be
altered subsequently. The objective medical facts
should be recorded & comments about the etiology
of the facial injury should be confined to what can be
substantiated
Digital facial photographs should be obtained before the
initiation of any care & postoperative outcomes should be
documented
The English Legal System

In any situations, clinicians may be asked to give

factual witness evidence or to give evidence and
opinion as a medical expert witness

In a civil action for clinical negligence (medical

malpractice), the clinician may be called on to
give either factual evidence or expert evidence

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The Clinician’s Role In The Legal Process
(The Criminal Case)
Clinician who treats patient has suffered facial trauma may be asked
to give factual or expert evidence in a criminal action if the trauma
could have been the result of a criminal act

The factual evidence from the clinician relate to the extent of injury at
presentation, opinion about the possible cause of the injury & whether
it is possible to use this “factual evidence” to determine that it was
caused by the alleged criminal act

In criminal law, the evidential standard is higher than in civil law

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 The Clinician’s Role In The Legal
Process (The Civil Case)

To prove negligence in a civil that the duty was breached, and

action, the court has to be that the breach caused loss or
satisfied that there was a duty of damage to the individual that was
care owed to the individual by the not so remote as to have been
defendant unforeseeable by the defendant

Facial Plastic & Reconstruction Surgery SubDivision

 Allegations of negligence in a civil
action
Another individual,
An employer, if the example if the claimant
individual was was involved in a road
injured at work traffic accident (Road
(employer’s Traffic Act)/ an accident
liability) on another person’s
property (occupier’s
liability)

The manufacturer
of a defective
product An NHS Trust
(manufacturer’s (clinical
liability) negligence)

Clinician
The owner of an treating
animal that has patients in the
caused injury independent
(public liability) health care
sector (clinical
Facial Plastic & Reconstruction Surgery SubDivision
negligence)
 Allegations of negligence in a civil
action
There was a delay in diagnosis and treatment

There was inappropriate medical or surgical treatment

(e.g., wrong or unnecessary surgery)
The most
common There was an incorrect prescription or incorrect
allegations administration of medicines or other preparations
relating to
clinical There was a lack of informed consent about the risks
negligence are treatment &those risks ultimately materialized
the following
Treatment was not performed to the standard expected from
a reasonable of practitioners working in the same field

There was incorrect interpretation of tests or results

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 Clinicians should Patient version of the
consider possibility of history of the injury is
future litigation obviously important.
during consultation Diagrams and
with patients who photographs are
sustained facial injury usually invaluable

Considerations
For The
Treating
Clinician

Facial Plastic & Reconstruction Surgery SubDivision

Anatomy Of The Litigation Process

The first indication of
an impending claim is
usually a letter detailing
a complaint or
requesting access to
the patient’s MR. This
may come from the
patient or from his or
her solicitor
The Department of
Health places great
emphasis on resolving
The NHS has a complaints as quickly as
procedure operating possible
within Trusts to deal
with letters of
complaint from patients
before solicitors are
Involved

Facial Plastic & Reconstruction Surgery SubDivision

Anatomy Of The Litigation Process

This may be accomplished through a swift informal response from the clinician
involved or through prompt action to open further investigations and seek
conciliation

• If claimant is not satisfied/ internal investigation concludes standard

treatment was unacceptable, claimant may instruct solicitors to pursue the
complaint in a court of law

If patient decide to proceed, a letter detailing the claim will sent to the Trust’s
legal department/ to the individual doctor/ his solicitors in the independent
sector. The letter of claim is the first step in the legal process

Facial Plastic & Reconstruction Surgery SubDivision

Anatomy Of The Litigation Process

A letter of If an agreement If the clinician

response must cannot be has been
be provided reached, the involved, he will
within 3 months claimant can be asked to
of receipt of the issue a formal comment on the
letter of claim court document particulars of
(a claim form) to the claim
begin legal
proceedings

Facial Plastic & Reconstruction Surgery SubDivision

 Role Of The Factual Witness
In a civil action, the treating
As a factual witness, the
clinician may be
clinician is likely to be asked
approached by either the
to give details of the extent
patient’s solicitors or the
of the initial injury or
solicitors for the defense to
complaint
act as a factual witness

The clinician should provide

Evidence is based on the
information only about
contemporaneous
facts that are within the
recordings in the notes
scope of his knowledge

Facial Plastic & Reconstruction Surgery SubDivision

 Role Of The Factual Witness

Once expert evidence

has been obtained,
the next procedural
The expert witness
He should be entirely step is for the
has a duty directly to
independent solicitors acting for
the court
both parties to
simultaneously
exchange their reports

Facial Plastic & Reconstruction Surgery SubDivision

 Role Of The Expert Witness

Both parties may submit

written questions directly to
the other party’s expert within
28 days after this exchange for
the purpose of clarifying the
evidence contained therein
All of the statements and
reports are signed and must
contain a statement of truth

Facial Plastic & Reconstruction Surgery SubDivision

 CONCLUSION

Cases of facial trauma are most likely to involve allegations of

criminal conduct or of clinical negligence related to the cosmetic
result

Excellent documentation and good communication and relatives

will serve the treating clinician well in the avoidance of litigation

The standard of care is the standard of a responsible of doctors

practicing in the same field of medicine

Facial Plastic & Reconstruction Surgery SubDivision

Thank you

Facial Plastic & Reconstruction Surgery SubDivision