Even when a podiatrist practices within the standard of care, he or she still may be susceptible to a medical malpractice claim, especially when cases involve patients who undergo amputations. Accordingly, this author outlines proactive steps the podiatrist can take to help reduce the risk of malpractice claims.
Lower extremity amputations are both a clinical challenge and a source of potential litigation for every practicing podiatrist. According to various sources, every year in the United States, there are approximately 185,000 amputations, 84 percent of which are non-traumatic.1,2,3 Every day, 230 patients with diabetes in the United States undergo an amputation.4 Interestingly, after declining for years, the number of amputations increased by 50 percent between 2009 and 2015, especially among those under the age of 65.1,2
Combined with an influx of legal advertisements in traditional and new media markets, the increasing number of amputations make a podiatric practice a potential target for lawsuits. These advertisements by attorneys attempt to reach all individuals who have suffered any type of injury. They promise a review of the facts of the case at no charge and emphasize the potential for the plaintiff to receive a compensatory monetary award if the injuries were caused by negligence. For a plaintiff’s attorney who is deciding whether to accept a case, an essential factor is whether the damages suffered by the potential client will produce a satisfactory profit for the attorney. The attorney considers the cost of developing the case including expert fees and other significant expenses involved in litigation. A potential plaintiff who has had an amputation would be highly sought after by plaintiff’s attorneys, who place a high priority on cases that involve damages clearly evident to an arbitrator or jury.
Accordingly, lower extremity amputations are generally granted a thorough review by both the attorney and consulting podiatrist. The purpose of this review is to determine if there was negligence on the part of the treating podiatrist and if this negligence significantly contributed to the need for the amputation.
There is also analysis of the potential for a favorable outcome for the plaintiff. As there are thousands of amputations performed each year in the U.S., what determines whether any particular patient elects to seek the services of an attorney to sue the podiatrist? Why do the majority of amputations not lead to litigation?
The truth is that practicing within the standard of care does not necessarily protect a podiatrist from the filing of a claim. What measures can a podiatrist take to reduce the chance of a patient’s request for a medicolegal review of the clinical records? How can a practitioner improve medical documentation to avoid the initiation of a legal case?
Accordingly, let us take a closer look at claim prevention rather than analysis of a podiatric malpractice trial. Once a case is filed, even with the strongest defense, the defendant podiatrist will still likely have two or more years of stress before the case is concluded. Prevention should be the first priority.
In the New England Journal of Medicine, Studdert and colleagues analyzed a random sample of 1,452 closed malpractice claims against board-certified and fellowship-trained physicians and surgeons from a variety of allopathic medical specialties.5 They concluded that 37 percent of these cases did not involve errors. Why then might a patient consult an attorney and how does the attorney make the decision to accept a patient’s case and file a lawsuit?
In cases in which there is no compelling proof of substandard podiatric practice, the presence of a variety of problems in the plaintiff’s medical record can lead to the filing of a complaint. What can a podiatrist do in daily practice to avert these risks and avoid litigation?
Recognizing The Potential Impact Of Electronic Medical Records In Medicolegal Risk Management
Electronic medical records can be a source of material that strengthens a plaintiff’s case. Repeated templated notes, inaccuracies in notes and incorrect medication lists are all significant for a plaintiff’s consulting expert. An attorney will use errors and inconsistencies to attack the credibility of the defendant podiatrist. While these oversights in record keeping are not necessarily determinative in the attorney’s decision to take a case, they certainly do not benefit the defendant. These common problems create unnecessary risks that one should address with a random review of patient notes.
Contradictions between billing records and progress notes. Attorneys and their consultants scrutinize records to see if billing codes correspond with procedure descriptions in the progress notes. For example, if the podiatrist used a code for debridement of a full-thickness ulceration in billing records and medical notes describe a partial thickness ulcer, there would be questions about the accuracy of the records, the actual severity of the patient’s condition, and the credibility of the defendant podiatrist. The greater the number of billing discrepancies, the greater the damage to credibility. Podiatric office staff should double check billing for all at-risk patients, postoperative patients and wound care patients at least on a random basis.
Contradictions between progress notes and notes from other facilities. Attorneys also look for contradictions in progress notes of different health care providers, hospitals and nursing homes treating the same patient. They will look for records in which, for example, the wound care nurse describes the condition of an ulcer as being significantly worse than that described by the treating podiatrist. In cases involving elective foot surgery, an attorney reviews nursing notes for observations that may differ from those of the podiatric surgeon. Specifically, there are cases in which the nursing notes record discoloration of a postoperative foot prior to discharge and the podiatrist’s notes do not document any presence of discoloration. Such contradictions are especially significant in cases concerning postoperative vascular complications that lead to amputation.
Other differences in medical documentation that draw the attention of a plaintiff’s expert include distinctions between the podiatrist’s observations and those of other health care providers in regard to the appearance of a wound and/or the associated level of pain. A reporting radiologist’s assessment may also contradict that of the podiatrist regarding whether findings in an imaging study are consistent with osteomyelitis.
The lesson here is that either the treating podiatrist or the hospital podiatric resident should review all nursing notes prior to discharge and alert the attending podiatrist if there are significant differences. In addition, podiatrists should initial and date all pertinent imaging reports and lab studies received in the office to indicate appropriate review. The podiatrist should address any significant differences in findings or opinions in the progress notes.
Failure to initiate studies or additional referrals. In cases involving chronic ulceration, the plaintiff’s expert will examine records to see if treating clinicians have ordered any diagnostic studies or referrals during the time of the plaintiff’s treatment.
Despite the best clinical judgment of the residency-trained and board-certified podiatrist, a plaintiff’s expert will look for a reason to support an opinion that the standard of care required additional diagnostic studies or referrals to other specialists. In your clinical judgment, a particular lab or imaging study may not be indicated. However, virtually every lawsuit concerning amputation due to failure to adhere to the standard of care includes an allegation of failure to perform diagnostic studies or order a referral in a timely manner.
From a risk management perspective, when appropriate, it is beneficial to make referrals for additional recommendations or for confirmation of the assessment and treatment plan. Additionally, a podiatrist should document in the record any discussion with a patient related to ordering diagnostic testing and referrals if the wound does not improve. If the podiatrist is confident that a patient receiving chronic wound care does not require a consultation or additional diagnostic studies, he or she should consider occasionally noting in the record why a referral or additional studies are not necessary at that point in the management of the patient.
Incomplete or inadequate documentation. Every risk management conference stresses that the podiatrist should create a comprehensive progress note describing significant clinical findings in order to mitigate risk. However, in reality, the podiatrist may elect on some days to dictate an abbreviated note, due to scheduling conflicts or patient volume. It is best, at a minimum, to include the patient’s vascular status and any signs or symptoms of infection. For a wound care patient, the current appearance of the wound and your subsequent treatment advice are also pertinent.
One should carefully document when there is a lack of patient adherence to the treatment plan. Non-adherence includes failure to attend scheduled office visits, failure to take medications as prescribed, failure to comply with weightbearing or activity restrictions, and evidence of damage to a dressing or a cast. In addition to the medical importance of documenting non-adherence, a reviewing plaintiff’s attorney will likely decline a case if it appears there is credible evidence that the patient was more than 50 percent responsible for the injuries suffered.
Understanding The Role Of Patient Education When Treating High-Risk Patients
Beginning with the first office visit, podiatrists educate patients with diabetes and peripheral vascular disease about the potential for disease progression. Additionally, DPMs advise patients that podiatric treatment is intended to improve or maintain foot health, and to prevent the worst outcomes.
Practices should consider including in the initial patient paperwork a signature page discussing the potential consequences of diabetes and peripheral vascular disease, including the importance of contacting the office immediately if there are any concerning changes in the foot between visits. This information can also include direction for the patient to seek treatment with his or her family physician, local urgent care or the emergency department if the doctor is unavailable. One should give a copy of this document to the patient.
Since smoking is relevant in the care of at-risk patients, the podiatrist should also consider including a statement in the initial paperwork that smoking is harmful to circulation and healing. This statement can appear after social history questions regarding tobacco use. Furthermore, such a statement ensures that the patient is aware that smoking’s harmful effects are not limited to pulmonary problems. This statement should instruct patients to take steps toward smoking cessation or at least significant smoking reduction. Many podiatrists specifically counsel a patient about smoking prior to performing surgery. In addition to verbal instruction to discontinue smoking well in advance of the procedure, there should be written documentation that the patient agrees to discontinue smoking until the wound, whether it is ulcerative or postoperative, has healed.
Key Considerations In Communicating With The Patient
In addition to patient education, it is paramount that the doctor establishes and maintains an appropriate doctor/patient relationship so the patient feels comfortable asking questions concerning the clinical condition. Patients should also understand that they are invited to contact the office to speak to the doctor about any concerns at any time. During the visit, the doctor needs to actively engage with the patient and not merely complete an electronic checklist.
Levinson and colleagues examined the communication behaviors of primary care physicians with a history of malpractice claims and primary care physicians who had not been sued.6 The findings showed that those providers who had not been sued spent more time with patients and engaged in more back-and-forth conversation than providers with a pattern of malpractice claims.
Another study by Ambady and coworkers was based on an analysis of audiotapes of office visits with surgeons.7 The reviewing psychologists, blinded to the malpractice history of the surgeons, found that those surgeons who had a dominant and less concerned tone of voice were more likely to have been sued. Gladwell discusses these studies in his book Blink: The Power Of Thinking Without Thinking and stresses the importance of communicating respect through a non-dominant tone of voice.8 It is clear that that practicing within the standard of care does not necessarily protect you from having a claim filed against you.
If an at-risk patient fails to appear for a scheduled appointment, the office staff should make an effort to address the absence. It would be appropriate to send a letter to the patient about the importance of returning for care. If the patient does not wish to return, the podiatrist should advise the patient to arrange care with another practice as soon as possible. All attempts by the office to contact the patient should be documented in the record. Furthermore, the podiatrist should consider sending a letter to the patient’s primary care physician to advise that the patient has not returned for podiatric care. Ongoing communication between the podiatric office and the patient’s primary care physician shows coordination among the plaintiff’s health care team.
It is also important for the office to have a welcoming, caring and friendly receptionist and administrative staff. The office staff should alert the podiatrist to any signs of dissatisfaction expressed by a patient so he or she can address any concerns with the patient in a private setting.
Limb salvage is an important and impactful aspect of the work that a podiatrist does on a daily basis. However, there are times when treatment within the standard of care may not successfully prevent the consequences of disease progression. Just as podiatrists counsel patients on the importance of prevention, we must heed our own advice and learn to focus on prevention of medicolegal risk through analysis of our behaviors and administrative protocols.
Dr. Greenberg has specialized in the representation of podiatrists in medical malpractice cases for over 20 years. He is an attorney at Goldfein and Joseph, PC in Philadelphia, Pa. Dr. Greenberg is admitted to the Pennsylvania and New Jersey Bars, and is admitted to practice in the Federal United States District Court for the Eastern District as well as the United States Third Circuit Court of Appeals. He served as a member of the Pennsylvania State Board of Podiatry. He is board-certified by the American Board of Podiatric Medicine and maintains a private practice in podiatry in Thorndale, Pa. Dr. Greenberg is the director of the Law and Podiatry course at the Temple University School of Podiatric Medicine. One may contact Dr. Greenberg at email@example.com or (215) 979-8216.
1. Diabetic amputations may be rising in the United States. AJMC Managed Markets Network. https://www.ajmc.com/newsroom/diabetic-amputations-may-be-rising-in-the-united-states. Published December 13, 2018. Accessed September 11, 2019.
2. Geiss LS, Li Y, Hora I, Albright A, Rolka D, Gregg EW. Resurgence of diabetes-related nontraumatic lower-extremity amputation in the young and middle-aged adult U.S. population. Diab Care. 2019;42(1):50-54.
3. Halvachizadeh S, Pape HC. Indications and decision making in lower extremity amputations: has anything changed in the era of microvascular soft tissue and bone regeneration techniques? Curr Trauma Rep. 2018;4:241-246.
4. Fakorede FA. Increasing awareness this National Diabetes Month can save lives and limbs. AJMC Managed Markets Network. Available at: https://www.ajmc.com/contributor/foluso-fakorede/2018/11/increasing-awareness-this-national-diabetes-month-can-save-limbs-and-lives . Published November 29, 2018. Accessed October 23, 2019.
5. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors and compensation payments in medical malpractice litigation. N Engl J Med. 2006;354(19):2024-2033.
6. Levinson W, Roter DL, Mullooly JP, Dull VT, Frankel RM. Physician-patient communication. The relationship with malpractice claims among primary care physicians and surgeons. JAMA. 1997;277(7):553-559.
7. Ambady N, Laplante D, Nguyen T, Rosenthal R, Chaumeton N, Levinson W. Surgeon’s tone of voice: a clue to malpractice history. Surgery. 2002;132(1):5-9.
8. Gladwell M. Blink: The power of thinking without thinking. New York: Penguin Books, 2007;39-43.