A recent Cochrane Review concluded there is no evidence that non-operative management of bunion deformity, including the use of orthotics, is in any way superior to no treatment at all.1 In fact, the studies reviewed by the Cochrane database suggested that one year following initial evaluation for a bunion deformity, more people are pleased with the results of surgery than with orthotic or other non-operative management.
I recently participated as a defense expert in an alleged malpractice action. This concerned a patient scheduled for bunion surgery following her initial evaluation by her podiatric physician. She presented with specific concerns and complaints referable to her bunion. The podiatrist apprised her of the usual accommodative and palliative options available to her for this condition as well as the distal metaphyseal osteotomy for the correction of her bunion. The podiatrist reviewed the procedure, usual sequelae, recovery and risks of surgery with her. She signed a consent form.
Following surgery, the patient developed a minor, non-infected superficial wound dehiscence. For some reason, her podiatric physician made the well intended error of referral to a wound care center, where the minor wound dehiscence was blown into weeks of debridement, hyperbaric oxygen and a lot of unnecessary expense.
She healed without residual problems but her experience in the wound care center left her rather upset. She sued for malpractice.
The plaintiff's expert, who is a state podiatry board member, opined that the performance of surgery for the correction of a bunion without non-operative care such as orthotics fell below the standard of care and represented negligent care. Furthermore, the expert played the “angle game.” You know it: “This intermetatarsal angle did not warrant an osteotomy.”
Now let us get to the key points of this epistle. What concerned me about the case were at least two issues about which I believe we need some commentary.
The first issue is the concept of “conservative care” for a problematic bunion. Yes, we have an obligation to discuss accommodative and palliative efforts that we could render, but is the performance of such efforts required when there is no data to support the efficacy of such therapy?
I say no. A bunion is a deformity. If it is causing pain or creating adjacent digital deformity, a patient and podiatric physician have the right to proceed with surgery if both parties are of the opinion that this is appropriate and desirable. Yes, the patient should have a clear understanding of the procedure and potential complications. No question. But is non-operative care mandatory for a bunion?
The second issue of concern is that the plaintiff's expert in this case is a state board member. He has an absolute right to his opinion but does not have the right to ignore evidence-based medicine. What if a dissatisfied bunionectomy patient contacted the state board with a complaint that the podiatric physician corrected his or her deformity without non-operative care? In the eyes of this state board member, the care was negligent, potentially threatening the licensure of the doctor in question.
I personally witnessed this some years ago. A patient was upset with a continued lack of great toe motion following a component implant utilized for the treatment of a hallux limitus condition. The podiatric physician was accused of performing surgery with an “investigational” implant. I represented the individual at his state board hearing with regard to the standard of care. The particular implant was fully FDA approved and two retrospective studies had been published in our literature on the particular implant.
When confronted with these facts, the board chairperson (an older fellow) looked straight at me and said, “That's all nice, Dr. Jacobs but up here, we consider these implants experimental.” The practitioner in question had his license disciplined.
What is the “standard of care”? I will tell you an easy way to interdict many expert witnesses: Take national surveys of podiatric physicians. This would be a fantastic project for the American College of Foot and Ankle Surgeons (ACFAS) or the American Society of Podiatric Surgeons (ASPS), or an independent group.
For example, pose the question “Is non-operative management required prior to the performance of bunion surgery?” Have a national Web site. Individuals accused of malpractice could elect to pose specific questions. The answer would tell you the standard of care, namely, what the average podiatrist would do under the same or similar circumstances. The information, although certainly non-binding, just might be useful in court. Let a jury know what the average doctor actually does, not what the “experts” say the average podiatrist does. Is there a potential danger to this? I suppose. Put safeguards on the availability of the data prior to release, for example. This could be done.
Another solution is to have ACFAS or ASPS or somebody set up an independent review committee for accusations of alleged malpractice. There would likely have to be a fee associated with this. However, let the accused podiatric physician submit his or her case for an independent review. The panel would have no real authority in court as such. Then again, how could it not be helpful for a jury to hear that a national surgical organization reviewed the case and concluded there was no malpractice and the individual doctor comported with accepted standards of care?
My guess is that nobody will like the suggested solutions above. Certainly, the plaintiffs’ bar won’t care for these suggestions. Without them, there are fewer jobs for defense attorneys. Without them, there is less money for the expert witnesses.
What are your thoughts?
1. Ferrari J, Higgins JPT, Prior TD. Interventions for treating hallux valgus (abductovalgus) and bunions. Cochrane Database Syst Rev. 2009, Issue 2. Art. No.: CD000964. DOI: 10.1002/14651858.CD000964.pub3.