When ‘Not Guilty’ Does Not Necessarily Mean Innocent

Allen Jacobs DPM FACFAS

I recently had the opportunity to participate in a malpractice case in which I testified as an expert witness in support of the allegations that a plaintiff brought against her podiatric physician. The case ended with a defense verdict. The famous defense attorney F. Lee Bailey once noted that not guilty does not mean innocent, it means you were able to successfully “beat the rap.”

I have always found participation in malpractice cases, either for the defense or for the plaintiff, an interesting experience. There are many factors that go into the decision to settle a particular case or proceed with litigation, and there are many factors that ultimately play into the decisions made by juries.

In this particular case, a late middle-age obese female with diabetes and the usual comorbid conditions developed heel pain after using a new pair of boots for horseback riding. After one month of heel pain, she consulted her primary care physician who referred her to a local podiatrist. After performing the clinical examination, the podiatrist diagnosed the patient with plantar fasciitis.

Over the next seven weeks, the podiatrist treated the patient five times. She initially received a low-dye strapping and subsequently received corticosteroid injections with local anesthesia on three consecutive visits over a five-week period. The podiatrist obtained X-rays on the third visit and subsequently recommended surgery. Other than receiving another strapping on the seventh week, the patient received no additional conservative care.

The patient underwent heel spur resection and a partial plantar fascia release. Four days after surgery, the patient slipped, impacted her heel and perceived a cracking sensation. She returned to her podiatrist and he obtained X-rays. He told the patient the X-rays were negative for any pathology.

For the next three months, the patient’s foot remained swollen as did her leg. No additional diagnostic studies or radiographs were performed. She received several prescriptions for Medrol dose packs, a prescription for anti-inflammatory medication and was referred to physical therapy.

When she failed to improve after three months, she returned to her primary care physician who documented the presence of swelling of her foot and leg. She was referred to an orthopedic surgeon, who immediately obtained X-rays demonstrating a fracture-dislocation of the calcaneus extending into the subtalar joint.

The orthopedic surgeon reviewed the X-rays taken by the podiatrist and documented the fact that these X-rays clearly demonstrated a non-displaced fracture, which had now become displaced. The orthopedic surgeon's notes indicated that the fracture-dislocation occurred following a fracture of the calcaneus, which "was missed by her podiatrist.” The patient underwent open reduction internal fixation (ORIF) through a lateral approach without complication.

However, she started developing classic signs and symptoms of subtalar joint osteoarthritis. She filed a complaint against her podiatrist. I reviewed the records and was in agreement with the orthopedic surgeon that indeed, the initial and only postoperative X-rays taken by the podiatrist demonstrated a non-displaced fracture of the calcaneus.

Reviewing The Shortcomings Of The Defendant’s Assessment And Treatment

I never commented on the lack of additional non-operative care for the treatment of plantar fasciitis in an overweight diabetic patient. My concern was that the postoperative x-rays demonstrated a non-displaced fracture, which should have been treated, at a minimum, with an emphasis on immobilization and non-weightbearing. I also never commented on the fact that the patient remained swollen into the leg for three months after heel spur surgery. The doctor never seemed to be concerned about the cause of the persistent swelling as possible causes could include Charcot joint disease, deep vein thrombosis (DVT), infection or occult fracture.

The defense argued that the fracture line visible on the only X-rays taken following the injury was probably artifact. In addition, the defense argued that if, in fact, a non-displaced fracture was present, it already extended into the subtalar joint so arthritis of the subtalar joint was a fait accompli. Accordingly, the defense reasoned that any failure to diagnose or properly manage the fracture ultimately would not have made any difference.

The expert witness for the defense was an experienced court-wise individual. The plaintiff attorney, on the other hand, had no understanding of plantar fasciitis or calcaneal fractures, and dedicated no time to learn about these issues. In my opinion, he was ineffective in the courtroom.

The office notes of the orthopedic surgeon and the primary care doctor verified the fact that this individual had swelling into her leg for three months following surgery. She was given multiple prescriptions by the defendant doctor for Medrol dose packs, anti-inflammatories, and was prescribed physical therapy. However, the podiatrist did not obtain additional X-rays.

During discovery in this particular case, it turned out that the orthopedic surgeon was a golfing partner of the defendant podiatrist at a local private golf club. They frequently had dinner together and competed as partners in golfing events at the club. Needless to say, his interpretation of the X-rays, the significance of this fracture and the inevitability of osteoarthritis of the subtalar joint changed when he provided his testimony in court.

Closing Thoughts

Like attorneys, I never take the outcome of any particular case personally. However, I do learn something each and every time I participate in a malpractice case. I suppose the defendant doctor in this case is back golfing at his private club, lamenting the evil malpractice system and our country. He will explain to his friends and colleagues that fortunately the legal system validated his treatment of this patient. Meanwhile, the plaintiff will go about her life limping, develop osteoarthritis of her subtalar joint, and eventually require a fusion, which hopefully will occur without complication.

As for me, I wonder why someone would allow a patient to remain swollen to the knee for three months following a plantar fasciotomy and not consider the possibility of Charcot's joint disease, an occult infection, an occult fracture or thrombophlebitis. I wonder why a doctor would take the patient to the operating room for a plantar fasciotomy after minimal conservative treatment. I wonder why the patient would be treated with three cortisone injections on consecutive visits in less than five weeks.

I do not know how good a golfer the defendant doctor is but I suspect I know how good a doctor he is. I suppose his punishment was eight days lost from work, time off for depositions and meeting with lawyers, and some degree of anxiety and worry while the case was pending.

F. Lee Bailey was correct. “Not guilty does not mean innocent … it means you beat the rap.”


This is the problem with our profession that everyone is better than the next. Quick to criticize, scrutinize and have contrary opinions. Any and every case can be looked at and disagreed upon. It seems Dr. Jacobs did not like the podiatrist,lawyer or expert for defense. When will we be a united profession. Fractures can be missed by radiologists also. Unfortunately NO one is perfect in this world except Dr. Jacobs perhaps.

The problem is not with missing a fracture. Subtle fractures are missed by everyone. The problem is not following up appropriately when the clinical course seems to go awry from what you expect. I agree with Dr. Jacobs that failure to follow up to look for Charcot or DVT or some other pathology will only cpme back to haunt you.

"united profession" does not mean conspiracy of silence. It means standing up for the public, protecting the public. Three months of swelling to the knee is NOT normal following plantar fasciotomy. What if the patient subsequenly died of a fatal PE from an ignorned thrombus. Or became septiv and sufferred from SBE from undiagnosed infection. Standing up for the profession also does not mean that "anything goes". We all make mistakes, that is true. But no labs, no x-rays, no dopplers, no thoughts on 3 months of protracted swelling ? Hopefully, the doc gives more thought to his approach golf shots that he did this patient.

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