Was This Bunion Case Malpractice? You Be The Judge
- Allen Jacobs DPM FACFAS
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The radiograph at the top of this page is the postoperative X-ray of a patient who underwent a Lapidus procedure for the correction of a bunion. The patient went on to develop a symptomatic nonunion, which required eventual bone grafting and revision. Although the procedure was radiographically and clinically successful, the patient continued to have some persistent symptomatology and sued the podiatric physician who initially treated him.
Two respected and nationally recognized podiatric physicians held opposite opinions regarding the fixation. One held that the fixation was acceptable and that nonunions are a known potential risk of any arthrodesis procedure. The other opined that the insufficient fixation resulted in the nonunion and the need for additional surgery. This was the only significant issue in the case.
The case settled immediately prior to the appointed court date as such cases are apt to do.
I relate this case to the readers for a purpose. I want to ask you if the fixation in this case was or was not negligent. You be the judge.
The defense position is simple: nonunions occur under the best of circumstances. A nonunion per se does not imply negligence by the surgeon. In particular, we can cite numerous studies demonstrating high rates of problematic healing associated with the Lapidus procedure. There are many types of acceptable fixation including Kirshner wires. Lapidus himself initially utilized less rigid or compressive fixation than that used by the defendant doctor in this case.
Who is to say that the patient might not have developed a nonunion even with larger screws, longer screws, plates or alternative fixation? How does the plaintiff expert prove that, in this case, the nonunion was likely associated with inadequate fixation?
The plaintiff’s position is simple. Forget the ancient literature or extended arguments of what has been done in the past. The fact is that this is inadequate fixation poorly applied. The inadequate and poorly performed fixation caused the nonunion.
Lawyers enjoy making an argument. Forget indications, postoperative care and other factors such as the apparent excessive elevation of the first ray following surgery. The question is this: would you be satisfied with this fixation as adequate? Is this fixation acceptable within a frame of acceptable alternatives?
These are really the important issues in a malpractice case. It is not what you would do but rather was this (or any) treatment acceptable? What if the same patient were immobilized for four months but achieved solid clinical and radiographic union? Is that still malpractice?
Yes, nonunions occur. However, can a board certified surgeon honestly say that he or she would have performed this procedure with two small and short dorsally placed screws? Would he or she honestly feel this fixation is adequate and within reasonable standards of care? Conversely, can a board certified surgeon honestly state that a nonunion would likely not have resulted with “better” fixation?
This is the problem with malpractice. There is an inherent prejudice in reviewing cases in that the “expert” knows the end of the story and therefore can nitpick through the records, pointing to all the factors that culminated in a poor outcome. Conversely, there is money to be made in being the good guy and defending that which should not be defended. There is more money to be made via the misuse of literature or distortion of actual practice standards.
Does negligent care occur? You bet. Are many perceived or actual poor results interpreted as malpractice? Yes indeed.
How The Medico-Legal Climate Has Changed
Earlier last week, a woman came to the office desirous of correction of her left bunion. After I started to explain to her that she had a large deformity, which required a Lapidus procedure in my opinion, she reminded me that in 1982 I had operated on her right bunion. I did not remember her. I looked down and sure enough, there was a long incision. She has a perfect outcome. She has a poker straight hallux, no bunion and full pain-free and crepitus-free range of motion. I was somewhat shocked at the outcome.
I took an X-ray of that foot. She had a base wedge osteotomy and hallux osteotomy with 00 monofilament wire fixation. If it were not for the fixation, you could never tell that surgery had been performed.
I reviewed that X-ray with her and told her that in today’s world, the surgery that I had performed on her would be malpractice.
I look forward to hearing your thoughts on the case above.