Seven Keys To Preventing Malpractice Lawsuits
Most podiatrists may never be targeted by a malpractice claim. However, it is prudent to consider preemptive strategies to help reduce the risk of being sued and to minimize your potential exposure.
Overall, recent jury verdict data show only slight increases to the median and average jury awards in many states and many medical malpractice cases resolve without the payment of any damages. However, the highest malpractice payouts have increased for the most severely injured patients, according to a Bureau of Justice review of the 2000 and 2004 statistics for Florida, Illinois, Maine, Massachusetts, Missouri, Nevada and Texas.1
From 1990 to 2004, Missouri’s median medical malpractice payment increased fivefold while Texas and Nevada saw increases of 26 percent and 27 percent respectively. Ten percent of the cases in Florida, Maine, Missouri and Nevada had payouts of $1 million or more. Thirty-three percent of general medical malpractice cases in Florida, Maine and Missouri had payouts under $250,000.
With these statistics in mind, let us take a closer look at proactive steps podiatrists can take to prevent malpractice lawsuits and costly judgments against them.
Strive To Ensure Patient Satisfaction
All malpractice claims have a common origin: a dissatisfied patient. Good patient communication is a great first step to reduce the risk of being sued. Listening and reacting to patient complaints about medical office visits will help prevent some borderline malpractice claims.
The most commonly voiced complaints are: waiting over 30 minutes; not getting an appointment within a week; a physician spending too little time with the patient; a lack of prompt response on test results; and a lack of a prompt return to patient phone calls.2
Avoid Promising Immediate Or Optimal Results
While clinicians should strive to improve and maintain a high level of patient satisfaction, they should resist promising immediate or optimal results, or a lack of postoperative pain. In a Mississippi jury trial, a patient said her podiatrist guaranteed she would be pain free in about four to six weeks after her bunionectomy. This patient alleged she would have declined surgery had she known she would be in pain for nine months after surgery. The case was dismissed due to the plaintiff’s failure (or perhaps her attorney’s failure) to have an expert testify on whether postoperative pain was a risk associated with bunionectomies.
Try to be actively involved in your defense counsel’s selection of your expert witnesses. The frequency of bunionectomy claims observed in jury verdicts may suggest that bunionectomy patients have high expectations. The extent to which bunionectomy claims may be over-represented is unknown because jury verdict data is not comprehensive. The more common types of bunionectomy malpractice claims cite overcorrection, excessive bone removal and the procedure being unnecessary.
Practice Within The Standard of Care
Keeping your practice within the standard of care is easier said than done. While defining a standard of care can be straightforward at times, it can be elusive in other situations. A lack of consensus may exist within podiatry on the standard of care for a specific treatment. It can also vary from state to state. A specific podiatric standard of care may also lack consensus within the broader medical community. Standards of care can also vary in a malpractice trial because the political dynamics can influence whether the “least rigorous, most rigorous or something in between” standard of care applies.
In a recent Florida jury trial, expert podiatrists challenged a defendant internist on behalf of a patient who alleged her internist’s overaggressive bilateral phenol ablation of her great toenail beds resulted in infection and subsequent bilateral distal Syme’s amputations. The patient also alleged the failure to prescribe antibiotic treatment and to refer to a podiatrist in a timely fashion.
The patient’s podiatric experts stated that the patient had severe chemical burn reactions secondary to overuse of phenol with scarring, nerve damage, drainage and pain. They also maintained the internist failed to do a culture and sensitivity of the drainage. At trial, the internist explained his standard of care for a nail bed ablation procedure by quoting from his textbook Procedures for Primary Care Physicians. This was dissimilar to the standard of care opinions of the expert podiatrists.
The jury agreed with the internist. This may be partly due to the authoritative nature of the standard of care testimony the internist quoted from his medical text. Another key factor was the fact that pharmacy records and the chart contradicted the patient’s claim that she never received antibiotics.
Please bear in mind that your standard of care for any treatment may not be identical to others in the medical community.
Provide Prompt Referral To Other Specialists When Appropriate
If you note abnormal findings from dermatological, vascular, neurological or musculoskeletal exams, immediately refer the patient. Failing to obtain a vascular consult is one of the most frequent types of “failure to refer” podiatric malpractice claims in the jury verdict data.
In a New York jury trial, an elderly patient saw a podiatrist a week after a can fell on her foot. The patient had shooting pain, swelling and dorsal foot discoloration. The podiatrist felt she aggravated an ingrown toenail so he removed it. When pain and swelling continued, the podiatrist suspected reflex sympathetic dystrophy (RSD), now known as complex regional pain syndrome (CRPS), but later ruled it out based on the absence of color or temperature changes.
This podiatrist subsequently referred the patient to a physical therapist who observed two blue toes but said nothing, assuming the podiatrist already noted them. The patient then saw a vascular surgeon who tried an unsuccessful popliteal bypass and later amputated her two toes. This patient subsequently developed clotting from an adverse reaction to medication, leading to a below the knee amputation (BKA).
The jury found for the podiatrist, probably due to the brief length of time between his treatment and the vascular surgeon’s first treatment, and the time between the vascular office visits, subsequent surgery and complication dates.
In contrast to the New York verdict, a Michigan jury awarded $1.23 million for a podiatrist’s failure to refer to a vascular surgeon in a timely manner. When the patient first saw the podiatrist for severe vascular insufficiency and ischemic foot ulceration, he was treated with antibiotics and was instructed to return in two weeks. Upon his return, the patient was referred for a vascular consult 17 days later, a month after the first podiatric visit. The patient went to the emergency room for a necrotic foot before he saw the vascular surgeon, and had a BKA a week after seeing the vascular surgeon.
This jury rejected the podiatrist’s defenses that the patient had chronic but stable symptoms, did not need an urgent vascular referral, and any delay was due to the vascular visits.
In a New Jersey jury trial, the patient alleged her podiatrist failed to refer her in a timely fashion to a vascular surgeon despite an absence of healing during an initial course of antibiotics. The patient further contended that after two weeks, the podiatrist hospitalized her and called in a vascular surgeon, who found a BKA to be necessary.
The podiatrist maintained his initial conservative treatment course of antibiotics was appropriate and that her amputation would have been necessary irrespective of the timing of the vascular referral. While this jury found the podiatrist negligent, it found he did not cause the need for the BKA. Based on the known information, the jury agreed the timing of the vascular referral was immaterial because the BKA was inevitable.
In a Pennsylvania jury trial against a podiatrist (and internist who settled), an elderly patient alleged the internist cleared her for surgery to correct forefoot deformities despite poor circulation. It was also alleged the podiatrist violated the standard of care by failing to assess preoperative vascular status.
The issue here was whether it was appropriate for the podiatrist to rely on an internist’s verbal conclusion that a patient has vascular approval for surgery. This patient claimed her podiatrist should have read the internist’s entire vascular report because he needed to understand the extent of her peripheral vascular disease (PVD) and rheumatoid arthritis (RA), the cause of her forefoot deformities. The vascular report stated there should be enough blood flow for surgery despite the patient’s PVD and RA. After surgery, there was an infection, non-healing and osteomyelitis of the big toe. The big toe and part of her foot were then amputated.
In reaching a defense verdict, this jury agreed the podiatrist met the standard of care when he received verbal clearance of the patient’s vascular status. Other juries may disagree. It is usually best to read the written vascular report.
Why Maintaining Accurate Charts And Records Is Essential
It also helps to keep detailed patient charts and billing records, especially in cases of malpractice suits. These should be a contemporaneous record, which legally means chart entries are made at or soon after the time of the activity. Patient consent forms, when detailed and executed in advance, are useful to show a jury that you discussed risks and complications with your patient.
It is also beneficial to take digital photographs as objective evidence to distinguish pre-, intra- and postoperative status. For example, in a Pennsylvania jury trial, a patient claimed risks and options were not explained during her podiatric office visit for bunion pain. After the bunionectomy, she claimed to have more pain than before and walking problems. The podiatrist recalled discussing risks and options, which he proved to the jury with chart documentation. The podiatrist also charted her history of back problems that may have contributed to her pain. This jury returned a defense verdict. When documenting, specifically list everything discussed, not just the generic phrase “discussed risks and options.”
In a recent Michigan jury trial in which a patient alleged a failure to detect and treat a postsurgical foot infection that turned gangrenous, the podiatrist received a defense verdict because he proved that he followed the standard of care and that the patient failed to complete postoperative treatment. One can best document this with accurate pre-, intra- and postoperative records.
Similarly, in a recent Ohio trial, the podiatrist allegedly performed an unnecessary amputation of the distal aspects of the second and third toes on the patient’s right foot. The jury returned a verdict for the podiatrist because he proved surgical necessity with graphic preoperative photographs of her foot. This countered the patient’s claim that her distal phalanx amputations were unnecessary. A picture is worth a thousand words and can be the best evidence to prove your case.
A recent Florida jury trial involved a malunion after surgery for a left calcaneal fracture that subsequently required fusion. The patient first saw the defendant podiatrist, who diagnosed a depressed, comminuted intra-articular calcaneal fracture and performed an open reduction with internal fixation (ORIF). The patient denied receiving non-weightbearing instructions on her postoperative visits.
Since this patient experienced poor healing and pain, she obtained a second opinion from an orthopedic surgeon who diagnosed significant displacement, neuritis and impinged peroneal tendon with subtalar arthrosis, residual loss of heel height and heel widening. This surgeon subsequently did reconstructive heel surgery but six months later, the patient claimed she had RSD.
For trial, the patient’s orthopedic and physical therapy experts said the ORIF of the calcaneal fracture failed, the podiatrist failed to instruct the patient to be non-weightbearing, the orthopedic screws loosened, the patient had continuing left foot pain, and she developed RSD from the podiatric surgery.
Did the screws loosen and malunion result from poor ORIF technique or because the patient walked after the ORIF? The jury reached a defense verdict for the podiatrist.
In another Florida jury trial, one of the podiatric claims was falsifying the chart. This single issue can spell disaster. While this podiatrist said he merely responded to his attorney’s request to redictate his illegible chart handwriting, he also added what he normally would have done in an examination. The jury still returned a defense verdict for this podiatrist, believing he clarified rather than altered the chart.
Refrain from redictating a chart. An equally volatile coding and billing issue arose in a Pennsylvania jury trial in which the patient alleged her bilateral bunionectomies were unnecessary.
At deposition, the podiatrist claimed he also performed and billed for hammertoe surgeries but could not recall performing the hammertoe surgeries. The podiatrist explained he simply wanted to help with the patient’s insurance deductible. The jury awarded $225,000 in damages as the billing issue may have eclipsed all others.
Do Not Assume Patients Will Not Sue Concerning Routine Podiatric Treatments
While steroid injections and nail procedures are often thought of as “simple” procedures, they can result in malpractice claims. It is imperative not to underestimate these treatments and to ensure appropriate patient selection and meticulous documentation of one’s methodology.
In a recent Indiana trial, the patient alleged negligent phenol ablation of her toenail (the first toe on the right foot). This reportedly caused an abscess and led to an ischemic ulcer that turned gangrenous and spread to other toes and her foot. About 15 months later, a vascular surgeon unsuccessfully did a bypass graft to revascularize her foot. This was followed by a right forefoot amputation a week later. Healing problems continued. The wound became ischemic and ultimately resulted in a BKA.
The patient alleged her podiatrist should not have used phenol on her again, knowing she took 13 months to heal when he previously used phenol on the second toe of her right foot. The patient also stated her vascular surgeon had earlier warned this podiatrist of her poor circulation, secondary to congenitally small, lower limb blood vessels. This patient further alleged she should have been pre-screened for phenol. The patient’s vascular trial expert said the podiatrist failed to make a vascular referral at the first sign of poor healing from the phenol ablation as the chances of limb salvage are better if a bypass graft is performed as early as possible.
Before this trial, a medical review panel of two DPMs and a vascular surgeon ruled 2-1 that there was no breach of the standard of care, and 3-0 that the podiatrist did not cause the need for the BKA. At trial, the defense blamed the patient for poor healing because she was a smoker who did not take her medications and change her own dressings. The jury reached a defense verdict for the DPM.
Injection sterilization is another basic practice claim that one sees with some frequency in the jury verdict data. In a recent Massachusetts trial, the patient reported heel pain and difficulty walking two weeks after a podiatrist administered a right heel spur injection.
The podiatrist diagnosed a deep wound Staphylococcus infection and the patient underwent an incision and drainage. At trial, the patient alleged the podiatrist failed to swab his heel with alcohol or Betadine™ before his heel injection, and this resulted in four months of pain with walking limitations. The podiatrist stated he swabbed the heel before the injection and did not cause the infection. The podiatrist prevailed and this was likely due to the fact that infection is a known surgical risk.
A plaintiff also claimed improper sterilization in a Virginia jury trial. A patient who was treated by a podiatrist for several months developed pain in his big toe. The patient subsequently developed severe pain and swelling after receiving the second of two toe joint injections for inflammation and pain. The podiatrist noted a septic joint and hospitalized the patient for IV antibiotics. The patient developed osteomyelitis and subsequently underwent surgical removal of the toe. The patient claimed a permanently altered gait, biomechanical issues, pain and limited activities. The patient alleged his podiatrist failed to sterilize his toe before the injections. The jury agreed with the podiatrist and this was likely due to the fact that infection is a known complication of injections.
Always Document Any Conservative Care Utilized Before Surgery
This is old-fashioned common sense. Unless a condition is emergent, initial conservative treatment may be suitable for the patient and very helpful if you are ever sued for subsequently performing more aggressive procedures.
In a Pennsylvania jury trial, the patient alleged her podiatrist failed to use conservative treatment before performing surgery to remove an accessory navicular bone. She claimed the podiatrist should have tried an orthotic shoe first. After surgery, this patient alleged chronic foot pain related to nerve entrapment and that the podiatric surgeon invaded the wrong area. The patient had two subsequent surgeries, from which the treating surgeons noted scar tissue entrapping her nerve. The defendant podiatrist explained that he first attempted conservative treatment but said an orthotic shoe would not have cured her condition. This jury agreed with the podiatrist.
A similar allegation arose in a New Jersey jury trial in which the patient alleged that his podiatrist failed to provide conservative care for his heel spur before performing surgery that entailed cutting the Achilles tendon. The podiatrist explained that he provided two months of conservative treatment before surgery. He also pointed out that the patient signed an informed consent form and failed to follow his post-surgery non-weightbearing instructions. The jury reached a defense verdict.
Remarkably, in the above two cases, the treating podiatrist did first utilize conservative treatment yet this was apparently not the patient’s perception or recollection. Accordingly, good patient communication and accurate chart documentation are imperative as a patient’s recollection of past conversations and treatment may be inconsistent with your own.
Lessons learned from reviewing podiatry malpractice jury verdicts provide insights to better understand and implement each of these preemptive suggestions. Common sense practices such as clear patient communication, observing the standard of care, not promising optimal results, ensuring timely referrals to specialists, and maintaining accurate charts will reduce the risk of being sued for malpractice.
1. Medical malpractice claim study of seven large states, for claims closed between 2000-2004. U.S. Department of Justice. Bureau of Justice Statistics, March 2007, via the Insurance Information Institute. March 2007.
2. Consumer Reports, via AMNews. February 2007.