The Power Of Words: When An Orthopedist ‘Discovers’ A Severed ‘Artery’ On The Plantar Surface Of The Toe
- Allen Jacobs DPM FACFAS
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A recent podiatric malpractice case for which I had the honor of serving as a defense expert was one of two recent cases (I'll discuss the second case next month) wherein I had the opportunity to examine the power or wording in an operative report. As always, I wish to share my experiences in the hopes of the readers learning something about the real world of medical malpractice.
The plaintiff was a middle-aged woman to whom the world had been less than kind. Unemployed, she lived in a trailer without electricity or plumbing in the backyard of her daughter. A well-trained podiatric surgeon performed her Austin-Akin bunionectomy without complication. One week following surgery, she presented with a blister at the distal end of her incision but had an otherwise normal examination. The surgeon noted “NVS WNL.” I think we all know what that means.
Four days following this visit, she went to a hospital emergency department with pain, edema, erythema, leukocytosis and a diagnosis of cellulitis. She was admitted with a diagnosis of cellulitis. A foot and ankle orthopedist evaluated the patient and concurred with the diagnosis of cellulitis. The patient subsequently received IV antibiotics for four days. There was no infectious disease consultation. The orthopedist and the medicine department had diagnosed cellulitis in their notes. The patient had a persistent leukocytosis. Orthopedics noted that the patient had progressed satisfactorily and wrote to discharge the patient.
However, a nurse noted pus coming from the incision and the discharge was cancelled. The patient went to the OR where the orthopedist performed two extensive incisions and drainage. Following the surgery by the orthopedist, the dorsal toe became gangrenous. Prior to this time, no note ever indicated ischemia.
The patient then received whirlpool therapy. (I must admit that I had not for years thought about whirlpools, something that in ancient times many podiatry offices gave patients). The patient’s great toe status deteriorated and the orthopedist then amputated the great toe/first ray.
At surgery, the orthopedist “discovered” an artery that had been severed on the plantar surface of the toe and declared that the podiatrist had likely cut this artery. This caused the ischemic necrosis, which oddly no healthcare provider had ever observed or documented until the incision and drainage performed by Sluggo the Orthopod. The orthopedist then told the patient of his discovery of the severed artery and advised that she consult with a lawyer. Not so coincidentally, he had the name of an attorney who turned out (as ironic as you may find this) to be a friend of his with whom he had consulted on prior malpractice cases.
At the time of discovering the severed artery, the orthopedist clamped the artery for identification. He personally transported the amputated toe to pathology, informing them that he had identified an artery severed by the podiatrist on the plantar surface of the toe two weeks previously, which caused dorsal ischemic necrosis to occur following his incision and drainage.
The podiatrist was sued.
How The Malpractice Testimony Played Out
The foot and ankle orthopedist testified that he was “shocked” that the podiatrist did not dictate that he utilized retractors to protect the soft tissues when performing the Akin bunionectomy, and that since it was not so stated, that the podiatrist likely cut the artery when performing the Akin procedure. You know, the old "if it isn't in the record …”
Hold on. It gets better. The orthopedist further testified that the toe was probably ischemic at the first and only postoperative visit since "NVS, WNL" doesn’t really describe what actually underwent evaluation. Oh, you got it: "if it isn't in the record ..."
Do you want to hear the best part? The “artery” that the podiatrist allegedly cut and the orthopedist identified was diagnosed by pathology as a nerve, not an artery. In fact, there was no artery in the neighborhood. But hey — nerve, artery, what’s the difference?
In court, the orthopedist could not explain how a plantar artery injury could result in isolated dorsal necrosis with totally normal plantar skin (although he tried). He could not explain how a major digital artery could be severed at surgery, yet no nursing or medicine note indicated any hematoma or ischemia until his incision and drainage (although he tried). He could not explain his clamping and identifying the artery the podiatrist severed, which turned out to be a nerve (although he tried). He could not explain his diagnosis of an improving cellulitis in the hospital in view of a persistent leukocytosis and ESR (although he tried). He could not explain his failure to consult infectious disease (although he tried). He could not explain his decision to discharge a patient whose abscess and need for incision and drainage was discovered by a nurse (yes, he tried).
The jury came back with a rather quick verdict for the defense.
This was an expensive case to defend and “huzzah” to the malpractice carrier. In the particular state where the case was litigated, a vascular surgeon had to testify that severing a major plantar artery in the hallux would not result in isolated dorsal ischemia (I was not qualified). We require a pathologist to testify that Sluggo the Orthopod couldn't tell an artery from a nerve. We require an orthopedist to attest to the stupidity of his colleague.
The carrier spent a lot of money to rightfully defend this podiatrist. They provided him with excellent legal representation and, with the exception of me, good experts. The defendant doctor in this case deserved every bit of this defense. It is what you should hope for should you be sued when you have done nothing wrong.
I believe in my heart of hearts that this was a willful effort by a foot and ankle orthopedist to injure a well-trained, competent podiatrist in an effort to cover his own negligence.
Here is my point. Document. Dictate more than NVS, WNL. Spell it out. Skin color, temperature, turgor normal to testing. No demonstrable sensory or motor deficit on testing. Good (or normal) muscle strength. At the completion of any procedure, from P+A to to TAR, document "at the completion of the procedure, skin color, temperature and turgor were normal to testing. Capillary filling was less than three seconds. There was no demonstrable sensory or motor deficit."
You might also remember to document that "all vital structures identified (or otherwise) were carefully retracted throughout the procedure."
The saddest part to me is that Sluggo will likely do this again.