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Medico-legal and ethical aspects of nasal fractures secondary to assault: do we owe a duty of care to advise patients to have a facial x-ray?
  1. Marie-Claire Jaberoo1,
  2. Jonathan Joseph1,
  3. Gillian Korgaonkar2,
  4. Kandappu Mylvaganam3,
  5. Ben Adams1,
  6. Malcolm Keene1
  1. 1Department of Otorhinolaryngology, St Bartholomew's Hospital, London, UK
  2. 2School of Health and Social Work, University of Hertfordshire, Hertfordshire, UK
  3. 3Clinical Ethics Committee, Luton and Dunstable NHS Foundation Trust, Luton, UK
  1. Correspondence to Marie-Claire Jaberoo, Northwick Park Hospital, Watford Road, Harrow, HA1 3UJ, UK; mcjaberoo{at}gmail.com

Abstract

Guidelines advise that x-rays do not contribute to the clinical management of simple nasal fractures. However, in cases of simple nasal fracture secondary to assault, a facial x-ray may provide additional legal evidence should the victim wish to press charges, though there is no published guidance. We examine the ethical and medico-legal issues surrounding this controversial area.

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Nasal fractures are considered the most frequent type of fracture in the head and neck, and account for almost 50% of facial fractures.1 A typical accident and emergency department serving a population of 400 000 will expect to see approximately 2000 nasal injuries per year. Of these, 350 cases will be suspected nasal fractures.2 This extrapolates to over 50 000 suspected nasal fractures per year in the UK. The majority are caused by assault, with studies finding this figure as high as 57%.3 ,4

Guidelines advise that x-rays do not contribute to the clinical management of simple nasal fractures.5 Facial and skull x-rays are relevant only for serious injuries.5 However, in cases of simple nasal fracture secondary to assault a facial x-ray may provide additional legal evidence should the victim wish to press charges though there is no published guidance.

Bolam6 establishes the principle that if a responsible body of opinion exists that nasal fractures can be diagnosed and managed on clinical findings alone this should constitute valid evidence for the courts. The primary duty of the clinician is to act in the best interests of the patient and practise within appropriate clinical guidelines.7

It may be deemed unethical to expose a patient to radiation to prove a point for law (and possible litigation) where there is no medical benefit. The ethical principle of non-maleficence becomes relevant. The major concern is the radiation risk to the eyes. An x-ray of facial bones with two views gives an exposure of 0.06 mSV. Several papers have emphasised that facial views of nasal fractures have low sensitivity and specificity.8 Therefore the legal value will be low.9 ,10 The Royal College of Radiologists does not recommend nasal bone x-rays as the lateral plates of the nasal bones are difficult to identify. There is a strong argument that patients should not be investigated and treated just to counter a defendant's argument in a court of law.

One can take a broader view of best interests and ask whether assisting the patient to obtain justice and therefore have closure on the incident may be a benefit. It is important, however, to distinguish between the criminal law and civil law. In a criminal case, the decision to prosecute involves the Crown Prosecution Service, who must be satisfied that (a) there is sufficient evidence to ‘provide a realistic prospect of conviction against each suspect on each charge’11 and (b) that the prosecution is required in the public interest. Whilst the Crown Prosecutors’ Code requires prosecutors to into take account victims’ views, regarding the impact that the offence has had, ‘the prosecution service does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest.’12

If a patient wishes to bring a civil case against the perpetrator then the presence of supporting evidence in the form of an x-ray might be in his interests and he may choose to accept the risk of radiation for the benefit of succeeding in his case. Recent ethical debate has concluded that the benefit here is too far removed from the clinical situation to be a reason for deviating from best clinical practice guidelines. The matter then arises of those patients requesting an x-ray privately, using autonomous choice to seek more evidence.

The second medical-ethical principle to consider is that of Justice. When a diagnosis could be made clinically, performing an x-ray costing £30 in the National Health Service is not resource efficient and will have an impact on the care of other patients. If however, the patient is paying privately then this argument becomes irrelevant. A UK leading medical defence organisation advises that the clinician does not owe a duty of care to advise a patient to have an x-ray taken in cases of nasal fracture secondary to assault and they are not a medico-legal requirement.

However, the UK Medico-Legal Society states that if one were giving expert evidence for the defence in an assault case and an x-ray had not been done, this could be used to cast doubt on the diagnosis and thereby on the force of the blow alleged to have caused the injury. If there was any question of an assault having caused the injury, some lawyers would regard an x-ray as mandatory. Otherwise it is open to ‘there is no evidence of a fracture’ and this can be used to promote the idea that the force applied was not as great as alleged. The Legal Guidance of the Crown Prosecution Service differentiates between an ‘un-displaced’ and ‘displaced’ broken nose. The former amounts to the charge of Common Assault. The latter may be prosecuted under the more serious charge of Actual Bodily Harm.13 The reasons for changing the severity of the charges in a criminal prosecution are often manifold and the absence of a single piece of evidence is unlikely to be the only factor. Despite published medical evidence against the use of facial x-rays, the latest legal view suggests that a lawyer may use a lack of evidence to lay seeds of doubt in the minds of the jury and aim to reduce the level of charge against the perpetrator.

Autonomy and patient choice are key factors in this debate. With the current legal precedent, patients may request x-rays to substantiate their claim for assault. The Criminal Injuries Compensation Authority (CICA) sets tariffs according to the degree of injury. They too make the distinction between displaced and undisplaced fractures.

However, clinicians do not have to agree to x-ray if they are confident about the diagnosis and the patients also should be aware of the limited sensitivity of plain x-rays. In a civil case where the patient would only have to prove the assault on the balance of probabilities, it is more likely that the judge would accept the body of professional guidelines and base their judgement on the clinical evidence. This highlights the importance of accurate and full recording of the clinical diagnosis and the reasons on which it is based.

Advising an investigation for the purposes of legal prosecution rather than clinical care is not seen as within a clinician's duty of care but as a function of the role of a legal advisor. It has been suggested that Trust guidance for clinicians in how to approach cases where alleged criminal activity, such as assault, has taken place would be helpful. In addition, we suggest that ENT departments should offer facial photography in cases of assault, as further evidence of the deformity before it is corrected surgically. Although photography does not prove a fracture, there is no detriment to the patient and it provides an accurate clinical record (table 1).

Table 1

Criminal injuries compensation authority tariff banding

Acknowledgments

Mr Neville Davis MBE, Past President and Honorary Medical Secretary of the Medico-Legal Society. Mrs Diana Abrahams, Editor, Medico-Legal Journal. Dr Polly Richards, Radiology Consultant, St Bartholomew's Hospital London, Dr Tim Harris, Accident and Emergency Consultant, Royal London Hospital, Criminal Injuries Compensation Authority, Crown Prosecution Service, Clinical Ethics Committee. Luton and Dunstable NHS Trust.

References

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Footnotes

  • Contributors All authors made a significant contribution to the creation of this paper.

  • Competing interests None.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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