I am often called to testify in assault cases in which great bodily injury is an enhancement. In these cases I try to determine the severity of the injury based off of the medical records and photographs. For this month’s newsletter, I’d like to point out some ways to avoid pitfalls in GBI cases by using a savvy expert.
Fractures – Are they always GBI? Not necessarily
- Broken bones usually meet GBI without question. In most of these cases, the jury will find that it is a significant injury. But there are exceptions to every rule, and in this case it is nasal fractures. The nose is the most common bone in the face to be fractured. In many cases the nasal fracture is diagnosed in the emergency department. However, the standard of care dictates that radiology is not a reliable method of diagnosing a nasal fracture, so these diagnoses may be false positives based on an incorrect reading of a xray. See my blog post here for supporting literature. The current medical standard is to refer the patient to a specialist for follow-up examination and further testing. If there are no follow up records, it is reasonable to argue that the nose wasn’t fractured in the first place. Don’t assume a diagnosis of nasal fracture is correct.
Open Wounds – Does size matter? Not necessarily
- Another common issue I am asked to look at is if there is an open wound, such as a cut or a laceration on the body. Many times a head injury is assumed to meet GBI enhancement criteria because of the amount of blood that comes out of a head wound. I look at location, size and depth during my assessment, this is because blood alone is not clear justification for GBI. The truth is that a very small head wound has the potential to bleed profusely. This is due to the high level of vasculature in the head.
- Potential for disfigurement is of greater concern to me than the size of the wound. A small wound on the face has a much greater cause for concern than a large wound on the upper leg. This is because a scar on the face is more visually prevalent than a scar on the leg.
- Many times, the procedure used to close the wound is a good determinant of severity as well. A “complex” wound closure indicates multiple layers of tissue (often the muscles) and an increased likelihood of scarring. A “simple” wound closure means that it only involved the top layer of skin, a single layer of sutures were needed, and the wound is likely to have a small or invisible scar after it has fully healed. The use of glue, such as dermabond, also indicates a very minor wound. A review of the procedure notes can show that the wound is minor.
Therefore, consulting an expert in cases where GBI has been added on may prove to be beneficial. As medical experts, we can find information in the medical records, photographs and police reports that could change your case.
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