How To Minimize Legal Risks With Bunionectomy Complications
However, the standard of care is not perfection and a mistake is negligence only when a reasonably careful practitioner would not have made the same mistake under similar circumstances.16 Even an outstanding physician may be negligent in providing particular services to a particular patient on a particular day.
In one bunion surgery case, a surgeon performed an inadvertent osteotomy of the second metatarsal when performing an osteotomy of the first metatarsal. In this case, the surgeon did not admit a mistake and told the patient he had sustained a “stress fracture” of the second metatarsal. When poor healing occurred and the surgeon told the patient that the “stress fracture” was a result of surgical error, the patient sought litigation. In this case, the litigation was primarily motivated not so much by damage as by the inaccurate description of events by the surgeon. Oftentimes following a mistake, a truthful discussion with the patient may avert litigation.
Why Preoperative Documentation Is Critical
Properly detailed documentation can be a significant deterrent to reduce the risk of litigation alleging negligence following bunion surgery. Poor documentation opens the door for questions. Patients and/or their attorneys may perceive treatments as being unjustified if there is a paucity of supportive documentation.
There are reasons why the patient elects to undergo bunion surgery. It is important to document in detail the nature of bunion deformity and any pre-existing pain, symptomatology and/or disability associated with the bunion. This is perhaps the single most important area that requires documentation. Oftentimes, the alleged damages resulting from surgery were actually present prior to surgery but the foot and ankle surgeon did not document them.
Pain is not infrequently due to nerve compression of the medial proper branch of the medial plantar nerve or the medial dorsal cutaneous nerve as these nerves are compressed by the displaced first metatarsal. One should describe such nerve compression syndrome in the chart as existing prior to any surgical intervention. Doing so will mitigate the suggestion that surgery resulted in nerve damage.
With this in mind, Herron, et al., demonstrated that sensory dysfunction of the great toe may be present in as many as 44 percent of patients with symptomatic hallux deformity.17 Similarly, they noted the frequent allegations that bunion surgery caused decreased range of motion, qualitative motion or abnormal direction of motion.
The documentation of preexisting abnormality in range of motion, quality or direction of motion again mitigates such damages. However, this is all too commonly absent from the medical record.
Not infrequently, a patient may allege that bunion surgery has caused sesamoid pain when, in fact, such sesamoid tenderness or pain existed prior to surgical intervention. Unfortunately, the surgeon did not document it properly.
If a bunion and hallux valgus deformity has been progressive, enlarging and has caused increasing frequency and intensity of symptoms, one should document this as further justification for surgical intervention. Also document the effect of a bunion deformity and hallux valgus on adjacent structures.
For example, a minimally symptomatic hallux valgus/bunion deformity may be associated with hypermobility, callus formation below the second metatarsal or the development of hammertoes, or abduction deformities of the adjacent digits. Once again, the documented existence of a callus below the second metatarsal head or submetatarsal pain prior to surgery would limit damages from allegations about these conditions resulting from “transfer metatarsalgia” due to excessive shortening or elevation of the first metatarsal during surgery.
Not infrequently, hallux valgus findings are associated with callus formation on the plantar medial aspect of the hallux interphalangeal joint or the first metatarsophalangeal joint (MPJ). The surgeon should document the presence of such lesions as further evidence regarding the nature and extent of such deformities, and the effects of these deformities on the patient.