What I Learned From A Recent Malpractice Case On Warts
- Allen Jacobs DPM FACFAS
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I recently had the opportunity to participate as a defense expert in a malpractice case. The jury returned a verdict in favor of the defendant podiatrist, determining that the plaintiff was 75 percent responsible for damages and the defendant was 25 percent responsible. However, the case was in the commonwealth of Pennsylvania where, unless the jury finds the defendant podiatrist to be greater than 51 percent responsible, it is a defense verdict.
As usual, this case offered me the opportunity to learn a good deal about the workings of malpractice cases and there were some lessons to learn. The most important lesson in this particular case, in my opinion, is that one must be very careful in selecting wording to describe the patient's signs and symptoms.
A Closer Look At The Case
The case involved a middle-aged female with a number of social and psychosocial problems. She had been under care for multiple plantar warts just plantar and distal to the second and third metatarsophalangeal joints (MPJs) on one foot. She maintained that her warts were quite painful. She underwent a literal plethora of the usual wart treatments, such as topical medications, cryosurgery, thermal surgery and even surgical excision of her warts on two separate occasions. In spite of what appears to have been very reasonable efforts to resolve her problem, the warts continued to recur and she reported them as painful.
The treating podiatrist elected to inject bleomycin intradermally for the treatment of the lesions. The patient signed a consent form, which acknowledges the fact that bleomycin can be associated with rather significant inflammatory reactions.
The patient then received an injection of bleomycin and subsequently developed a rather significant inflammatory response with skin desquamation. However, following resolution of the symptoms over the next month, the patient healed and her warts resolved.
Approximately over one year later, there was a recurrence of the plantar warts. The patient requested a bleomycin injection as she had responded to this previously. The doctor made a notation that the patient was requesting a bleomycin injection even though she had developed "an allergy" to the medication. The patient had the injection and again developed a rather significant inflammatory response, which the treating podiatrist interpreted as being a possible "allergic reaction."
In addition to the pain, the patient developed Raynaud's phenomenon of her second toe and to a lesser extent her third and fourth toes. This is a known potential side effect of bleomycin. The Raynaud's phenomenon continued to involve her second, third and fourth toes, and the patient continued to experience pain in these digits.
When it became obvious that the patient was suffering from Raynaud's phenomenon as a side effect of the bleomycin, she got a referral to a vascular surgeon. The vascular surgeon noted that the patient had normal noninvasive vascular studies with the exception of decreased flow to the second toe and to a lesser extent, the third and fourth toes. The patient was a two-pack-a-day cigarette smoker and the vascular surgeon stated that the Raynaud's phenomenon would resolve with discontinuation of smoking.
However, the patient was dissatisfied with this recommendation, stating that smoking was essential to her life because of personal stresses. She consulted a second vascular surgeon who also noted otherwise intact vascular status and Raynaud's phenomenon, which likely would resolve with discontinuation of smoking. The patient also sought the care of another podiatrist, a wound care specialist and went to an emergency room. All of her subsequent treating doctors (five in all) told her she needed to discontinue smoking in order to resolve her Raynaud's phenomenon.
She refused to do so. Instead, she sought out a general surgeon requesting a deviation of her toes rather than discontinue smoking. The general surgeon obliged and amputated her lateral four toes. She continued to smoke in the postoperative period and had wound healing problems following the amputation, but did eventually heal her amputation sites.
She sued the first podiatrist for utilizing bleomycin.
The plaintiff retained two separate expert witnesses. Both witnesses are listed in Seak, a service in which a doctor may advertise his or her services to testify against other doctors. The first plaintiff expert stated that bleomycin was contraindicated in this patient because she smoked and that smoking was equivalent to vascular disease. Vascular disease is a contraindication to the use of bleomycin as a peripheral injection, and although the subsequent vascular studies and opinions of the two vascular surgeons were that the patient had no vascular disease other than Raynaud's from the bleomycin, the plaintiff expert was adamant that if a person smokes, he or she by definition has vascular disease, which should have contraindicated the use of the bleomycin. Similarly, the second plaintiff expert, also a podiatrist, reinforced this position and maintained that since the chart did not contain the word "allergy" and that a second injection was contraindicated, it resulted in the necessity to amputate the toes.
The case went on to court and as noted, the jury found that the defendant doctor was 25 percent negligent and the plaintiff was 75 percent negligent for failing to discontinue smoking in the face of five separate opinions advising her to do so.
The plaintiff expert who testified in court was a DPM, whose name is listed in Seak as being available to testify in malpractice cases. Having acted as a plaintiff expert myself, I have no personal issues with his testifying if he truly felt that the defendant doctor was negligent in care of this patient. However, one of the interesting aspects of the case was the plaintiff DPM expert’s testimony, under oath in court, that he had used bleomycin for the treatment of warts "hundreds of times." I thought that was interesting as I do not believe that the use of bleomycin is all that common and I certainly had difficulty understanding how one would use this particular medication "hundreds of times."
More important was the use of the word "allergic" or the phrase "possibly allergic." This was a case of an inflammatory response that is known to occur with the injection of bleomycin and the occurrence of Raynaud's phenomenon, a known potential sequela of bleomycin injection. This was not an “allergy." However, by using the word allergy, the defendant doctor opened the door for criticism. The plaintiff DPM expert explained that the first injection was not a possible inflammatory response to the use of bleomycin but rather represented an allergic reaction as the treating podiatrist stated. Therefore, the podiatrist should have not used the bleomycin, having recognized that the patient had an "allergy" to the medication. The judge therefore discharged the jury in part to consider whether this podiatrist had injected the patient with a medication to which she was known to be allergic.
Another aspect of the case was the defendant podiatrist referring to a specific article as being authoritative. The podiatrist in this case referenced an article on the use of bleomycin for the treatment of warts published in the Journal of the American Podiatric Medical Association.1 However, it appeared that the defendant podiatrist may not have strictly adhered to the protocol discussed in the article. Therefore, the jury understood that while the defendant podiatrist maintained a particular article as being the source and guidance for her use of bleomycin, they also knew that the defendant podiatrist did not follow the specific protocol in the article, and that this may also have resulted in an abnormal response to the injection.
Fortunately, the jury was able to understand that the patient simply needs to stop smoking to reverse her Raynaud's phenomenon and that the patient did not have a true "allergic reaction" to the medication.
Be very careful in considering the diagnosis you place in any chart. In this case, the word allergy opened up the specter for a malpractice case, taking a great deal of time and money to resolve, in this case on behalf of the defendant doctor.
Also be careful in referencing any particular article as being "authoritative." You may be held to the entire standard and protocol cited in the article.
Finally, as an aside, I wish we had the ability to subpoena the supply records of the plaintiff DPM expert. I would be curious to know exactly how often his office ordered bleomycin and how frequently his office is billing for the use of bleomycin for the treatment of warts. I am not suggesting that the statements of the plaintiff DPM expert were in any way inaccurate. However, it was information about which I certainly maintain a curiosity even to this date.
1. Salk R, Douglas TS. Intralesional bleomycin sulfate injection for the treatment of verruca plantaris. J Am Podiatr Med Assoc. 2006; 96(3):220-225.