The Dangers Of ‘Declaring’ Diagnoses

The phrase “Well, I declare” is humorous when heard on television or movie entertainment portraying a stereotypical southerner.

My friend and accomplished former college and podiatry school (for my colleagues who prefer to say they attended medical school, I apologize — I went to podiatry school) classmate, Marty Pressman, DPM, once commented to me that the best part of being an orthopedist is that you can “declare” a diagnosis without the necessity of certain things, such as — oh, for instance — facts.

Let me present two instances from this past year in which I had the opportunity to serve as an expert defense witness. Both cases went to court. Both cases came back as defense verdicts. Both cases were characterized by a foot and ankle orthopedist acting as the expert witness for the plaintiff. In both cases, the suit began when an orthopedist “declared” a diagnosis.

In the first case, a podiatrist performed a very well done Austin bunionectomy. He used absorbable pins for fixation. The patient was a pharmaceutical rep who has some psychosocial issues. Six weeks post-op, the foot and radiographs appeared excellent. The podiatrist recommended orthotics in order to prevent a recurrence of the bunion.

The patient, offended at what she perceived to be a sales pitch, left the care of her surgeon and came under the immediate care of another podiatrist. The subsequent treating doctor documented excellent clinical and radiographic healing. When the pain persisted, the subsequent treating doctor obtained a magnetic resonance image, which demonstrated a well-healed osteotomy and several linear channels corresponding to the areas in which the surgeon had placed absorbable fixation pins.

Six months later, the patient complained of minimal, non-disabling pain. X-rays demonstrated no abnormalities. The patient received three corticosteroid injections and orthotics. She returned to her workout routine but still had some minor issues.

One year following her initial surgery, she consulted a foot and ankle orthopedist. He obtained X-rays and immediately declared “obvious avascular necrosis (AVN),” although the radiographs appeared quite normal with no collapse, sclerosis, osteopenia or, in fact, any abnormalities.

Without the need for any additional studies, the foot and ankle orthopedist performed a less than stellar arthrodesis of the first metatarsophalangeal joint (MPJ). He did not request cultures or histology. The pathology report indicated standard degenerative changes but no avascular necrosis.

Over the next several months, the patient required multiple surgical procedures to remove several screws (one at a time) and finally the bone plate, which had been poorly applied. Within a year of the fusion, the malpositioned arthrodesis of the MPJ resulted in the need to fuse the hallux interphalangeal joint. This also remained symptomatic and this hardware also required removal.

Both podiatrists were sued for a failure to diagnosis the phantom avascular necrosis.

In his testimony, the orthopedist noted that the podiatrist used the word “deglove” to describe his soft tissue release. Admittedly, this was a bad choice of words, one I would not recommend. The lawyer for the plaintiff and the expert witness analogized this to a degloving injury. The jury heard what a degloving injury was.

It was all I could do not to laugh while sitting in the witness stand, when the plaintiff's lawyer looked at the jury and said, "Dr. Jacobs, this was a degloving injury, wasn't it? This was like taking a chicken wing — you eat chicken wings, don't you, Dr. Jacobs? — taking a chicken wing, putting in your mouth and ripping off all the flesh. That's what he did, didn't he, Dr. Jacobs? That metatarsal bone looked like a chicken wing when he got done degloving that bone, didn’t it, Dr. Jacobs?" (What made this worse was that the case was in Dallas, the lawyer had this strong Texas accent and to be quite frank, as a lifelong Eagles fan, I hate Dallas and the Dallas Cowboys.)

All over the word “degloved.”

A radiologist testified there was no AVN. A pathologist testified there was no AVN. I testified that there was neither AVN nor a degloving injury. Nevertheless, the orthopedist stood by his declaration of AVN.

The jury “declared” the foot and ankle orthopedist was incorrect.

When An Orthopedic Surgeon Makes A Hasty Declaration Of Osteomyelitis

The second case involved a very highly respected, published and acclaimed podiatric surgeon. The patient was an active, late-60s male with a progressively, severely painful and disabling peritalar dislocation (this was an actual severe rigid peritalar dislocation, not the pretend type diagnosed by the arthroereisis abusers). The patient did have multiple medical comorbid conditions. The extent of the deformity was so great that on three separate occasions, the physician recommended a below-knee amputation (BKA) as a reasonable alternative.

Although in agreement with BKA as an expeditious manner to deal with the problem, the defendant doctor offered a triple arthrodesis as a possible means to reduce the deformity and salvage the foot with an understanding that the extent and rigidity of this deformity was such that limited correction might occur. As the expert witness who reviewed this case, I can tell you this was a severe deformity and the effort made by the podiatric surgeon was admirable and heroic.

The surgery occurred with extensive allograft (mixed with gentamycin) in the subtalar joint. Heavy Steinmann pins were joysticks to reduce the deformity, which the surgeon maintained with staples for fixation.

Five days following surgery, the patient developed some drainage from one of the pin tracts combined with a brief 24-hour fever. All infectious changes resolved with local wound care and antibiotics, and the patient went on to heal and consolidate the fusion sites. Never was there any further suggestion of infection.

About one year following surgery, the patient developed ankle pain and swelling. He was diagnosed with AVN of the talus following appropriate bone and joint imaging. The surgeon considered ankle arthrodesis but the patient sought the care of a local foot and ankle orthopedist. The orthopedist concurred with the diagnosis of AVN, and scheduled the patient for ankle joint arthrodesis.

On the morning of the scheduled fusion, several drops of pus came out of the previously infected pin tract site. The orthopedist changed the diagnosis from AVN, “declaring” osteomyelitis. He amputated the leg. No bone cultures. No bone histology. The patient sued, forgetting that the original triple arthrodesis was a salvage effort to avoid the amputation that was the original suggestion.

The specimens from the amputated leg never confirmed osteomyelitis.

However, with excellent legal representation, and a foot and ankle orthopedist who admitted on the stand that he considered podiatry to be “competition,” the jury handed down a defense verdict.

Well, I declare.



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