How To Minimize Legal Risks With Bunionectomy Complications
There are proactive measures podiatric surgeons can take to minimize the risk of litigation with bunion procedures. Accordingly, this author emphasizes informed consent, proper patient and procedure selection, and thorough documentation before, during and after surgery.
In his classic 1965 textbook, Hallux Valgus, Allied Deformities Of The Forefoot And Metatarsalgia, Kelikian listed the most common complications associated with surgery for the repair of bunion deformity (see “A Guide To Common Complications With Bunion Surgery” on page 40).1 Over 43 years later, it is safe to say the majority of complications that Kelikian associated with the correction of bunion deformity remain problematic today.
The reality is poor results, patient dissatisfaction and/or surgeon dissatisfaction may occur following the surgical correction of bunion deformity absent any negligence. Unfortunately, poor results, limited results or patient dissatisfaction may result in negligence litigation against the foot and ankle surgeon.
Since hindsight and Monday morning quarterbacking are without consequence or difficulty, it is relatively easy to obtain an expert witness to testify that the operating surgeon was negligent, and that the complication or adverse sequela that the patient sustained was avoidable had the surgeon acted differently. After all, the patient is dissatisfied, has an alleged poor result and has alleged damages. Dr. Expert knows the reason why this occurred and will explain to the jury the manner in which this catastrophe could have been averted.
From a practical standpoint, hallux valgus litigation invariably is decided by the extent of damages that have allegedly occurred as a result of the “improperly” performed surgical procedure or negligent postoperative care. Realistically, the plaintiff’s lawyer is interested in damages because that is “where the money is.”
The critical factor in the evaluation of such alleged negligence cases are the medical records of the treating foot and ankle surgeon. When the medical records are complete and detailed, this will not infrequently negate the pursuit of litigation. All too frequently, however, medical records are lacking in detail and open the door for the allegation of damages.
What Do Patients Want From Bunionectomies?
In regard to a bunion surgery, Steven Smith, DPM, stated that the patient wishes the postoperative foot “to look good and to feel good.”2 The patient is not concerned with intermetatarsal angles, sesamoid positions or elevated first metatarsals. The patient does not care whether the surgeon reduced the hallux valgus deformity by reducing the proximal articular set angle or via a “cheater Akin.” The patient desires a straight toe that does not hurt and functions properly. As noted by Marty Pressman, DPM, “the patient wants to look down and not see a bump or a crooked toe.”3
Patients desire correction of the bunion deformity with minimal pain and discomfort. Generally, patients desire outpatient care and a rapid return to home and a normal life. The patient wants no recurrence of the bunion deformity and minimal or no out-of-pocket expense.
Perhaps the best description regarding the inciting factors for negligence litigation was simply stated in “Recipe for a Writ,” in which the author opined that the three major factors leading to medical litigation are poor patient-doctor rapport, unmet patient expectations and unexpected large bills.4 As a professor at the Pennsylvania College of Podiatric Medicine (now the Temple University School of Podiatric Medicine), James Ganley, DPM, felt that surgery for bunion correction should be aimed at gaining “limited results.”5
In other words, do not promise the world. Explain to the patient that the goals are to facilitate a reduction of symptoms, a reduction of the deformity, an increased ability to stand, walk or tolerate footwear following surgery. Do not promise patients a “perfect foot.” Otherwise, one may deal with “unmet expectations,” patient disappointment and the potential for litigation.
Underscoring The Importance Of Documenting Radiographic Findings
Radiographs commonly provide useful information in determining the appropriate procedure for bunion correction. The chart should accordingly contain a description of the relevant radiographic findings that one utilized. Of particular importance are such factors as the presence or absence of degenerative arthritic changes, joint adaptive changes, bone health status and the usual documented angular relationships.
As an example, the ability to reduce the intermetatarsal angle with the use of a distal metaphyseal osteotomy may be interdicted by the fact that a bone is simply too narrow to allow correction by a distal osteotomy. Under these circumstances, one should document the decision to perform a more proximal osteotomy or effusion as dictated by the width of the first metatarsal.
Essential Keys To Informed Consent And Medicolegal Aspects Of Surgery
One should clearly document the goals and objectives of a particular surgical intervention, and such documentation should include the desires of the patient. The preoperative medical record should include: the discussion of informed consent, a discussion of which realistic alternatives were available to the patient and which alternatives the patient declined. The record should clearly state the objective(s) of surgical intervention, particularly when limited results from surgical intervention are soft.
Easley noted that litigation surrounding foot surgery was a result of a number of definable problems.6 This included the fact that foot surgery continues to demonstrate evolving standards of care. Not only is this reflected in increased experience and a greater understanding of foot biomechanics, but also in the evolution of different osteotomy techniques and the emergence of new fixation devices. In addition, foot surgery intrinsically is subject to unique, specific post-op complications such as inadvertent first metatarsal elevation. Easley has also shown that with regard to foot surgery, patient expectations frequently exceed those of the surgeon.6
The observations of Easley make it critical that the surgeon specifically defines to the patient the goals and objectives of the surgical procedure, what can and what cannot be accomplished. The patient must understand that surgery will improve the pathologic condition but may provide only limited results. If the patient is not willing to accept the limits of symptom resolution that surgery can provide under the given circumstances, the surgeon would be best served by declining to provide such surgical intervention.
It is often suggested that one obtain the proper consent form in association with all surgical procedures. In addition to the hospital or surgery center standard consent form, one should obtain a procedure specific consent form in the office, and a discussion of the consent should be contained within the office medical records. This is frequently helpful in the defense of litigation alleging failure of informed consent. Patients frequently do not recall giving informed consent.
Shurnas and Coughlin reviewed 11 specific complications that could occur in association with bunion surgeries.7 Following surgery, the same patients were asked to recall those complications the surgeons discussed with them. On average, patients could only recall one of the 11 risks discussed with them prior to surgery. The researchers concluded that the average patient has poor or no recall of complications discussed with him or her prior to surgery.
Emphasizing Proper Patient Selection
Poor patient selection may contribute to dissatisfaction following surgery and may spur the potential for litigation. Refraining from performing surgery on such patients would be expected to reduce the risks of litigation. Patient selection factors include systemic factors, psychosocial factors and local factors.
Patient factors include bunions that one would expect to be associated with difficult correction and less than optimal outcome. For example, when it comes to a patient with a significant medial column adductus deformity, one would expect to have difficulty in obtaining a rectus hallux position and adequate reduction of the intermetatarsal angle without performing multiple osteotomies.
In one case, a patient underwent a Lapidus procedure that resulted in wound dehiscence and infection. Prior to the surgery, the surgeon documented signs and symptoms that were highly suggestive of inadequate peripheral vascular perfusion but nevertheless proceeded with surgical intervention.
Smoking is associated with a variety of pulmonary problems and cardiovascular problems, problematic bone healing, reduced arthrodesis rates, an increased incidence of deep vein thrombosis (DVT) and pulmonary embolism. Smoking is associated with an increased risk of wound infection and smokers reportedly have twice the incidence of wound healing problems following foot surgery than non-smokers.8 In spite of advice to the contrary, it has been demonstrated that the majority of patients will continue to smoke up to the day of surgery.
If one is performing bunion surgery on a smoker, advise the patient that he or she is at increased risk for problematic soft tissue and bone healing. The medical record should document a stronger indication for surgery and that one has advised the patient to discontinue smoking prior to surgery and during the postoperative healing period.
Bhargava and Griess demonstrated that while 99 percent of foot and ankle surgeons were aware of the deleterious effects of smoking on healing, only 84 percent of surgeons documented smoking and only 9 percent of medical records indicated that patients were warned about the potential deleterious effects of smoking on the surgical result.9 Twenty-three percent of surgeons altered their preferred surgical approach due to the smoking habit of the patient.
In addition to smoking, patients undergoing management for stress or depression have an increased risk of complications. Cole-King, et al., demonstrated a fourfold greater risk of delayed healing complications in patients suffering from anxiety and depression.10 Other researchers have demonstrated that stress is associated with increased serum cortisol levels, reduced interleukin-1 and interleukin-8 levels, and the presence of reduced wound neutrophils.11,12
Researchers have demonstrated that patients suffering from fibromyalgia experience higher levels of postoperative pain beginning two weeks following surgery and several studies have demonstrated increased patient dissatisfaction postoperatively in those individuals suffering from fibromyalgia.13-15
Do not perform surgery if the patient expectation from surgery exceeds that which you believe can be accomplished, particularly when the patient desires a guarantee of results. Similarly, exercise caution with those patients who are unduly critical of healthcare providers who treated them prior to your care.
When Surgical Mistakes Occur
Although mistakes do occur in surgery, there is a difference between a mistake and negligence. Specialists are generally held to a higher standard of care than general practitioners. Therefore, a podiatric surgeon is expected to perform surgery with a greater level of expertise than a non-foot and ankle surgeon.
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.
If a deformity is nonreducible, one should document this. The presence of a nonreducible deformity argues against effective utilization of orthotics, splints or other similar device devices, which a plaintiff expert might suggest appropriate for the reversal of the deformity without the need for surgery.
Not uncommonly, the expert witness for the plaintiff will allege that the surgeon selected an inappropriate procedure that doomed the patient. Every hallux valgus surgery is unique as a variety of factors may lead one to opt for a particular bunion procedure. Such factors may include the patient’s medical condition, ligamentous laxity, osteoporosis, the patient’s foot type and foot function, the presence of open growth plates, metatarsal width and social factors. One should document these factors to justify the procedure selection.
For example, consider the case of a patient who was scheduled for bilateral bunion surgery on the first visit. When the patient was dissatisfied with the results of the surgery and suggested that the present symptoms were not significant, the absence of any detailed examination in his chart made the defense for surgical intervention quite difficult.
Pertinent Pearls On Effective Intraoperative Documentation
Operative notes all too frequently contain the details of surgery but do not contain confirmatory evidence to justify intervention. Be sure to include intraoperative findings in the operative note. For example, one should document the presence of degenerative arthritis of the joint as this can help justify such procedures as resection arthroplasty, implant arthroplasty or arthrodesis. Other intraoperative findings may include confirmation of osteotomy reduction and stabilization, failure of the fixation devices to penetrate the joint, stability of the osteotomy construct on manipulation, crepitus free range of motion and adequate reduction of the deformity.
When it comes to any abnormal findings that could compromise the surgical procedure or lead the surgeon to alter the planned procedure, one should document these findings in the operative note.
Experienced hallux valgus surgeons understand that there is a variety of procedures and indications for these procedures. The intraoperative note should include such factors as reduction of the intermetatarsal angle with soft tissue correction, the observed proximal articular set angle and the quality of bone at the time of surgery.
Finally, always consider confirmatory intraoperative radiographs. Intraoperative radiographs can provide evidence that one properly performed the surgery, adequately reduced a deformity and properly placed a fixation. Conversely, obtaining multiple views of intraoperative radiographs gives the surgeon the opportunity to revise the surgical procedure prior to the discovery of “surprises” in the office when he or she sees the first postoperative radiographs.
In one case, there was a displaced/dislocated implant of the great toe joint. Staff took the X-rays in the office following surgery. In subsequent litigation, the patient alleged that the toe was dislocated from the time they had left the operating room. Unfortunately, in spite of the protestations of the surgeon to the contrary, no intraoperative X-rays were available to support the surgeon’s claim that he or she had properly performed the procedure. Of course, this made it quite difficult to defend this case.
Ensure Proper Postoperative Documentation
Complications can occur following any surgical procedure. Not infrequently, patients and/or their attorneys allege that the surgeon failed to recognize and treat abnormal sequela or complications in a timely manner following surgery. Sadly, many competent doctors fail to properly document the postoperative status of the patient.
Postoperative documentation should include more than “the patient is doing well.” Documentation should include local and systemic evaluation of the patient.
Not infrequently, doctors obtain X-rays following surgery but no commentary is in the chart regarding an assessment of the X-rays. One should document alignment of the osteotomy, the status of osteotomy healing, absence of displacement of the osteotomy or fixation, and reduction of the preoperative deformities.
The clinical examination of the patient following hallux valgus surgery should document the absence of pain, tenderness, crepitus or detectable motion on manipulation of the osteotomy.
From a general viewpoint, documentation should note the absence of fever, chills or rigor. Also document the status of the incision, whether there is an absence of discoloration, ecchymosis, erythema, dehiscence, drainage, malodor or if there is evidence of fluctuance or crepitus.
Document the neurovascular status following surgery and note the absence of findings on provocative testing that are suggestive of nerve entrapment. Document skin color, temperature and turgor, and similarly state the absence of vasculitis or vasospasm. Also document the absence of any sensory or motor deficit.
Note the presence or absence of leg or thigh pain. One should document the absence of leg swelling and a negative Homan or Pratt sign on every visit, particularly when patients have been immobilized for a prolonged period of time.
When there is a discord between the surgeon’s notes and the X-rays for description of pathology by the patient, poor documentation may lead to a perception of the surgeon as inattentive or uncaring.
Common charting “flaws” include a lack of description of the preoperative pain and disability experienced by the patient. One should document mitigating circumstances for a particular surgical approach in all charts. The surgeon should advise patients of risks and alternatives associated with particular surgical interventions, and have documentation supporting that advisement. Intraoperative radiographs and documentation should be complete, and one should ensure similarly detailed postoperative documentation.
Poor outcomes, whether real or perceived by the patient, will occur when surgeons perform hallux valgus/bunion correction. The foot and ankle surgeon cannot prevent the review of medical records or some litigation. However, good patient selection, good documentation and good surgical technique likely will reduce the frequency of poor results and the frequency of litigation associated with those poor results.
Dr. Jacobs is a Fellow of the American College of Foot and Ankle Surgeons and a Fellow of the American Professional Wound Care Association. He is in private practice in St. Louis.
For related articles, see “Current Concepts With The Lapidus Bunionectomy” in the December 2008 issue, “How To Get Better Results With Bunion Surgery” in the July 2008 issue or “How To Treat Severe Bunions” in the August 2005 issue.
1. Kelikian H. Hallux Valgus, Allied Deformities of the Forefoot and Metatarsalgia. W.B. Saunders Co., Philadelphia, 1965.
2. Personal communication with Steven Smith, DPM.
3. Personal communication with Marty Pressman, DPM.
4. Nisselle P. Recipe for a writ. Poor rapport + unmet expectation + big bill = a writ. Australian Family Physician 22(5):824-7, 1993.
5. Personal communication with James Ganley, DPM.
6. Easley M. Medicolegal aspects of foot and ankle surgery. Clin Orthop Rel Res 433:77-81, 2005.
7. Shurnas P, Coughlin M. Recall of the risks of forefoot surgery after informed consent. Foot and Ankle Int 24(12):904-8, 2003.
8. Moeller A, Pedersen T, Villebro N, Munksgaard A. Effect of smoking on early complications after elective orthopedic surgery. J Bone Joint Surg Br 2003;85(2):178-81.
9. Bhargava A, Greiss M. Effects of smoking in foot and ankle surgery – An awareness survey of members of the British Orthopaedic Foot & Ankle Society. Foot 17(3) 2007
10. Cole-King A, Harding KG. Psychological factors and delayed healing in chronic wounds. Psychosomatic Med 63(2):216-20, 2001.
11. Marucha PT, Kiecolt-Glaser JK, Favagehi M. Mucosal wound healing is impaired by examination stress. Psychosomatic Med 60(3):362-5, 1999.
12. Glaser R, et al. Stress-related changes in proinflammatory cytokine production in wounds. Arch Gen Psych 56(5):450-6, 1999.
13. Broderick JE, Ross JA. Is there evidence for surgery triggering the onset of fibromyalgia? J Musculoskeletal Pain 13 (3):19-25, 2005.
14. Straub TA. Endoscopic carpal tunnel release: a prospective analysis of factors associated with unsatisfactory results. Arthroscopy 15(3):269-74, 1999.
15. Velanovich V. The effect of chronic pain syndromes and psychoemotional disorders on symptomatic and quality-of-life outcomes of antireflux surgery. J Gastrointestinal Surgery 7(1):53-8, 2003.
16. Sanfilippo JS, Smith S. Complications: what’s the standard of care? Clin Obstet and Gynec 46(1):31-6, 2003.
17. Herron ML, Kar S, Berad D, Binfiel P. Sensory dysfunction in the great toe in hallux valgus. JBJS 86(1):54-7, 2004.