$750,000 Verdict - Failure To Obtain Informed Consent For Foot Surgery (NY)

Posted on October 17, 2008 by Michael Quinn

A damages-only case in New York involved the plaintiff's right to decide whether or not to receive additional medical treatment/surgical procedures to the feet, which established the podiatrists' duty to inform the patient (informed consent).

The plaintiff maintained that the two defendant podiatrists misrepresented her rights as to the nature of the surgery that they proposed to perform. She alleged that the surgeons did not obtain informed consent and that they negligently performed the surgeries, leaving her with a fused joint in her large and small toes, ataxic gait and ongoing pain and in her smaller toes, preventing her from walking properly, enjoy jogging, and race walking, as she once did, and to live a pain-free life.

The trial lasted three days and the trial judge entered a verdict in favor of the plaintiff. He awarded her $ 250, 000 for past pain and suffering and $ 500,000 for future pain and suffering, for a total award of $ 750,000.

Source: Jury Verdict Review Publications, Volume 16, Issue 11 [PM NEWS]

 

 

The plaintiff, who was a healthy woman and an avid jogger and race walker, was a female in her mid-50's at the time she visited the two defendant podiatrists. She contended that she had two office visits prior to surgery. She maintained that the defendants advised her that she needed an in-office surgical repair of her feet due to all the years of jogging, which had caused bursitis on the balls of her feet, as well as, hammertoes. The procedure, called Arthrodesis, is usually reserved for more rigid toes or severe cases, such as when there are multiple joints or toes involved. It is a procedure that involves a fusing of a small joint or joining in the toes to straighten them. A pin or other small fixation device is typically used to hold the toe in position while the bones are healing. She alleged that she signed a pre-operative consent form. However, she claimed that during the procedure, the doctors failed to advise her that they would be performing additional invasive surgery, which involved the fracturing of her toes on both feet. As a result, she has been diagnosed with ataxic gait and experiences continual pain in both feet and toes and can no longer enjoy jogging.

The plaintiff testified that if she had been made aware of the extensiveness and invasiveness of the procedure, she would not have consented to it. She also produced testimony that the defendants failed to obtain consent for the additional surgery. As a result, the plaintiff claimed she has difficulty walking, is no longer able to jog and experiences pain in both feet and all of her toes. The plaintiff's expert podiatrist testified that the plaintiff has since been diagnosed with ataxic gait, and will have pre-mature arthritis as a result of the surgery. In addition, he testified that the extensive procedure was unnecessary and that she would someday be a candidate for "salvage" surgery. Plaintiff's counsel also testified that the plaintiff's insurance company was overcharged.

The defendants testified that they did, in fact, inform the plaintiff of the surgical procedure, both before and during the surgery. They maintained that the phalanges and metatarsal surgical repair was necessary. In addition, they testified that the additional surgery was necessary in order to properly correct the plaintiff's abnormalities in her toes. They maintained that the patient signed a consent form and they produced what they claimed was the plaintiff's signature on a consent form. The defendant surgeons maintained that the procedure was minimally invasive. Counsel for the defense argued that the surgery did not worsen her condition.
 
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Podiatrist Defense Verdict: Diabetic Foot Ulcer (IN)

Posted on June 21, 2008 by Michael Quinn
From November 1996 to February 2000  defendant podiatrist had treated Ronald Vice in connection with diabetic foot ulcers. Vice alleged that defendant’s lack of treatment, patient education and diagnostic studies  led to bilateral, below-the-knee amputations.

The plaintiffs alleged that defendant failed to recognize the seriousness of a diabetic foot ulcer, and refer the patient to a vascular surgeon, order vascular and arterial pressure studies and make proper assessments of right foot wounds while attempting to treat the left foot. Other allegations included failures to order antibiotics, blood work, x-rays, MRIs, bone scan, CBC, metabolic panel, sedimentation rate and serum protein with albumin; moreover, the plaintiffs asserted that defendant had failed to hospitalize plaintiff, and inform him of the seriousness of potential leg loss. The plaintiffs further argued defendant failed to perform incision and drainage procedures with deep debridement and order bone and soft tissue biopsies and wound cultures.

According to a medical review panel opinion dated Feb. 10, 2003, the medical review panel found evidence supported the conclusion that defendant had failed to meet the appropriate standard of care as charged in the plaintiffs' complaint. However, the panel found defendant's conduct was not a factor in the plaintiffs' resulting damages. Moreover, the panel determined evidence did not support the conclusion defendant had failed to meet the appropriate standard of care.

In their answer, the defendants generally denied the plaintiffs' allegations. By way of affirmative defense, the defendants argued Vice had been contributorily negligent and had incurred the risk of a known danger. The podiatrist, in denying negligence, asserted Vice had suffered from several other medical conditions besides foot ulcers, including uncontrolled diabetes, congestive heart failure, coronary artery disease, hypertension, renal insufficiency and peripheral vascular disease. Defendant contended her care and treatment met or exceeded the applicable standard of care in all respects.

Result: Defendant’s verdict

Plaintiff’s Experts: Stephen G. Lalka, MD; Michael A. Salcedo, DPM, South Bend, IN; Robert E. Clemency, MD, South Bend, IN.; Sheree L. Peglow, MD, South Bend, IN; Stephen F. Mitros, MD, South Bend, IN; Charles E. Petersen, MD, South Bend, IN; R. Gregory Credi, MD, South Bend, IN.

Defendant’s Experts: Maria F. Curfman, MD, Fort Wayne, IN; Bruce L. Gewertz, MD, Los Angeles, CA; Michelle Cervin, DO, South Bend, IN; Daniel E. Scherb, MD, South Bend, IN; Frank C. Toepp, DPM, South Bend, IN; Jeff Niespodziany, DPM, Mishawaka, IN; Theodore A. Vorenkamp, DPM, South Bend, IN; Brian Rolfe, DPM, South Bend, IN; William Fox, DPM, Niles, MI; Nelson Worden, DPM, Mishawaka, IN; John Grady, DPM, Oak Lawn, IL, Thomas Wicks, DPM, New Castle, IN; Richard M. Hilker, DPM, Fort Wayne, IN.; Randolph J. Ferlic, MD, South Bend, IN; Bruce J. Brincko, DPM, Knox, IN.

Source: West's Jury Verdicts - Indiana Reports
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$2M Verdict For PA Man has Corn Removed, Loses Both Legs (Pennsylvania)

Posted on April 2, 2008 by Michael Quinn
A jury has awarded more than $2 million to a man who had a corn removed from his toe and ultimately lost both legs after a series of infections. Donald Davis Sr., 59, of North Wales, Montgomery County, sued Pottstown podiatrist Therese M. Rinaldi, who removed the corn. Davis, who had circulation problems, developed an infection, gangrene and then a staph infection after the corn was removed. He was later treated for sores on both legs. Doctors ultimately decided to amputate his left leg above the knee and his right leg below the knee.

The Berks County jury set Davis' damages at $3.4 million, but found he was 40 percent responsible, lowering the award to almost $2.07 million. Davis did not tell Rinaldi about his circulation problems when he first visited her office, according to court records. Davis alleged that Rinaldi did not review his medical records before removing the corn from his small toe on Sept. 27, 2000, at Pottstown Memorial Medical Center.

Davis, who was also treated at St. Joseph Medical Center, also sued surgeons and both hospitals, but they were dismissed as defendants before the two-week trial. Rinaldi's attorney said he plans to appeal.

Source: Associated Press [10/7/06]
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Alleged Misdiagnosis - Cancer Wrongful Death (Michigan)

Posted on March 26, 2008 by Michael Quinn

FACTS: The estate of a patient who died from a rare form of cancer alleged the man's death was due to negligence of the man's treating podiatrist. Plaintiff claimed defendant violated the standard of care, but the jury disagreed with that argument and returned a verdict in favor of defendant.

Plaintiff's decedent, 59 year old Walter Chapton, presented to defendant podiatrist in May 2000 with a 3 cm. lump on the top of his right foot. Defendant diagnosed the lump as a ganglion cyst and was able to aspirate only a small amount of fluid from the lump. Defendant injected the lump with corticosteroids. Chapton returned to see defendant two weeks later. Defendant's notes indicated the cyst was somewhat decreased in size and he told decedent there was no need to undergo further treatment unless the cyst got bigger, became painful or changed in color. On May 17, 2001, Chapton returned to defendant as the lump had grown to 4" to 5" in length and 3" in diameter over the previous several months. Defendant recommended its removal, which was not accomplished until July 18, 2001. Pathologists identified the mass as a high-grade myxoid chondrosarcoma (cancer), for which surgery was futile as the cancer had already metastasized to Chapton's lungs. Chapton died in May 2002.

Plaintiff's experts opined that, had the cancer been diagnosed in or around May 2000, Chapton's chances of survival were 80% to 90%. However, when the diagnosis was made in July 2001, his survival chances were zero. Plaintiff alleged that, because defendant was unable to aspirate much fluid from the mass in May 2001, the standard of care required further testing, such as an MRI, ultrasound, or CT scan, or referral to an orthopedic surgeon.

Defendant contended that, despite retrospective knowledge that the diagnosis was incorrect, it was not a violation in the standard of care to miss the cancer. He claimed he was not negligent because primary cancerous lesions to the foot, , particularly chondrosarcoma, are extremely rare.

RESULT: Defense verdict

PLAINTIFF EXPERTS: Jonathan A. Haber, DPM, Caldwell, NJ, Charles F. Fenton, III, DPM, JD, Atlanta, GA, J. Sybil Biermann, MD, Ann Arbor, MI, Michael J. Kraut, MD, Southfield, MI

DEFENDANT EXPERTS: Charles G. Kissel, DPM, Warren, MI, Marshall Solomon, DPM, Farmington Hills, MI

Source; The Michigan Trial Reporter
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