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12/16/2013
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Ivar E. Roth DPM, MPH
Just like there are competent and incompetent doctors, there are honest and devious experts. We should all not rally around an incompetent fellow podiatrist just because he is a fellow colleague. I have seen really bad podiatric doctors defended by other podiatrists who are equally as inept and dishonest. This also is a despicable act. Real injured parties need to be compensated fairly. What if your mother had malpractice performed on her. Would you turn a deaf ear?
We, as podiatrists, must uphold the profession first and defend both for the injured party, innocent doctors, and against any incompetent colleague. It is simply what we must do. So, just because a fellow podiatrist testifies for the plaintiff does not make him a traitor. Every case is different and it really comes down to the facts of the case. In reality, truth is powerful and hopefully (but not always) prevails.
Other messages in this thread:
04/10/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Lawrence Oloff, DPM
The prophylaxis for DVT, and resultant possible PE, has been a controversial subject for years. The postings here reflect that. The discussion has had statements that it is not our problem as we are podiatrists. Another stated that a doctor has had malpractice claims for prescribing blood thinners and for not.
I would like to share a past experience. I was attending an Ortho meeting years ago. I was interested in a lecture reporting the findings of a multi-center analysis of DVT and PE incidence following lower extremity surgery. Their findings suggested that prophylaxis is not recommended as the vast majority of DVT cases were below the popliteal vein and as such these were less likely to result in PE. An attendee came to the microphone and asked for a show of hands of how many of those attending the lecture had ever lost a patient from PE. The number of hands that went up was a sobering...
Editor's note: Dr. Oloff's extended-length letter can be read here.
04/08/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Allen M. Jacobs, DPM
The observation of Dr. Myers is not at all unusual, as malpractice litigation is the paragon model of damned if you do, damned if you don’t. Some years ago, I received two cases to review in the same week. In the first case, a patient underwent an Akin osteotomy and second toe arthroplasty for a main concern of a painful hammertoe. The podiatrist concluded the hallux required correction to allow for reduction of the second toe, the Akin resulted in pain, swelling, and non-union, and the podiatrist was sued for performing an unnecessary Akin.
In the second case, a patient underwent a second toe arthroplasty for a painful hammertoe. The hammertoe recurred rather quickly, and the podiatrist was sued for not performing an Akin procedure to reduce the concurrent hallux valgus. You might argue that each case might be meritorious in its own circumstance. My thought? Get them both in the same courtroom and let a jury determine whether a hallux valgus deformity in a patient with a symptomatic second toe hammertoe but asymptomatic hallux valgus should or should not be reduced. Like most discretionary surgeries, it comes down to “it all depends”.
This is one more reason that documentation and rationale for treatment decision-making is so important. There are 85,000 malpractice cases filed every year. You cannot watch television or listen to the radio without hearing ad after ad from personal injury lawyers. When you document in the medical record, remember that the mythical “standard of care” is often a standard of “it all depends” on the individual circumstances. This is where your documentation can determine the outcome of a medical negligence accusation against you, or whether a suit is even pursued.
Allen M. Jacobs, DPM, St. Louis, MO
04/07/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Allen M. Jacobs, DPM
In response to the recent discussions on thromboembolism, here is a copy of the lecture I recently gave at the St. Louis Podiatry Seminar.
Allen M. Jacobs, DPM, St. Louis, MO
An internal medicine friend of mine has been sued for having people on blood thinners and has been sued for not having people on blood thinners.
Charles Myers, DPM, Conway, SC
04/04/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1B
From: Paul Kesselman DPM
Drs. Roth, Borreggine, and others have all brought up some very interesting points. The Standard of Care (SOC) for anticoagulation according to the literature appears dependent on the specific pathology. It appears prophylaxis anticoagulation and post-operative medication orders for the various anticoagulants on the market may be different for patients who have had a previous PE or DVT is different than for that of a patient who has a bovine cardiac valve.
Things have changed dramatically since I took pharmacology in the 1970s when just ASA, coumadin, and heparin were available. Certainly, our responsibility as the lower extremity surgeon is to obtain this as part of the patient's history and have the appropriate medical specialists order and manage these issues in all aspects of surgical care, both pre-, intra-, and post-operatively. This is also consistent with what my orthopedic colleague Dr. Ferlic posted here a few days ago. Certainly, in sharing information, we can't be castigated for sharing the wealth.
Paul Kesselman, Oceanside, NY
04/04/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1A
From: Allen M. Jacobs, DPM
"Standard of care" is a legal, not medical, concept. The definition of "standard of care" can and does vary from state to state. Juries are instructed as to the definition of "standard of care" in each particular state. For example, in some states, the term average is applied to the expected care rendered by a podiatrist. However, in some states the fact that a podiatrist provided less than average care is not assumed to be negligent care, otherwise 50% of those in practice would be considered negligent. In other states, terms like "reasonable care" are applied.
Remember however, the interpretation of these varied definitions will be interpreted by expert witnesses and lawyers and translated to the jury as such. This is why the selection of a capable and experienced lawyer is very important. It is why the selection of a competent expert witness is important. It is why the venue and the judge and many other factors are considered in the evaluation of each case and its merits for successful defense.
With specific reference to protocols for post-operative utilization of anticoagulants, you must evaluate each patient based on...
Editor's note: Dr. Jacobs' extended-length letter can be read here.
04/03/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)- PART 2
From: Ivar E. Roth DPM, MPH
Thanks Dr. Borreggine for your summary on DVTs. Another reason to read the daily PM News is for the thought-provoking news tidbits like this one, where a quick read in a few minutes will really drive home the salient points on improving one’s medical care and practice.
Ivar E. Roth DPM, MPH, Newport Beach, CA
04/03/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)- PART 1
From: John Lanthier, DPM
With all the recent discussions and postings about horror stories and sequelae from DVT and resultant PE status post lower extremity surgery, what is the standard of care in different areas of the country for pre-heparinizing patients who have an increased risk of PE and the corollary of stopping anticoagulants before surgery and then restarting? Do we leave this up to the internist to clear the patients for surgery, or do most practitioners have their own protocols?
John Lanthier, DPM, Sudbury, Ontario, Canada
Editor's comment: PM News does not provide legal advice. In the 20th century and before the standardization of medical education, there were often different standards of care based on where you practiced. Today, there is the same standard of care (SOC) throughout the U.S.; however, that standard is not static. The SOC is constantly changing with the advancement of equipment, medicines, techniques, and knowledge. One is held accountable to the SOC at the time a treatment or surgery is rendered.
03/28/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Allen M. Jacobs, DPM
DVT and pulmonary embolism are concerns for any patient immobilized or non-weight-bearing regardless of whether or not surgery was performed. The sophomoric suggestion that a podiatrist has no obligation to recognize the signs or symptoms of thromboembolic disease because limited licensure is both a dangerous thing for the patient and podiatrist as it is hardly likely to serve as a useful defense in a malpractice case.
As was noted in a previous correspondence to PM News, it is very easy to, in retrospect, list multiple factors which is taken in aggregate to place a patient in a higher risk category of thromboembolic disease. In my opinion, this is a problem with risk assessment scales such as the Caprini score. Many patients, if not most, have some factors predisposing them to ...
Editor's note: Dr. Jacobs' extended-length letter can be read here.
03/27/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1B
From: Fred Ferlic, MD
Fred Ferlic, MD, South Bend, IN
03/27/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1A
From: Daniel Chaskin, DPM
"The plaintiffs’ counsel cited Defendant’s deposition testimony, in which he admitted that he did not provide Plaintiff or his wife with any written instructions regarding post-operative movement for his legs, which counsel said was a departure from the standard of care." My opinion is that everyone with any type of swelling in the leg needs to have an MD or practitioner licensed to treat the leg refer the patient for a venous Doppler. The defense should have immediately said that the treatment of a pulmonary embolism is out of the scope of license for a podiatrist and therefore there was no standard of care related to the treatment of a pulmonary embolism by a podiatrist.
During the November 2 exam of the Plaintiff, the Defendant had asked him if he had any pain in his chest, any difficulty breathing and/or had pain in his legs. The defense cited the medical records which demonstrated that Defendant assessed Plaintiff’s left leg and ankle, and the Plaintiff did not have any complaints of pain. The findings indicated to Defendant that Plaintiff did not have a blood clot, the defense asserted.
Daniel Chaskin, DPM, Ridgewood, NY
03/26/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Joseph S. Borreggine, DPM
Whether it is a trauma of lower extremity or an elective lower extremity surgery, the risk of a DVT is always present. The Caprini Risk Score for DVT. This attachment is regarding the risk of DVT in foot and ankle surgery. Therefore, DVT risk should always be evaluated in these cases, because missing it can become potentially fatal. This is nothing new for any podiatrist who performs surgery. This malpractice case and its reason certainly drives home the importance it is to fully assess a patient's Caprini Risk Score pre-operatively.
Also, any patient seen in the office with acute abnormal unilateral swelling and/or pain in the lower leg should be immediately assessed for acute DVT so that it can be ruled out. As podiatrists, we see many patients who come into the office with acute foot and lower leg pain who have been stagnant in their activities of daily living (ADL) or because of immobilization who may be at risk for DVT medically speaking. Therefore, it is imperative to rule out DVT in those situations as well.
DVT is a serious matter, and everything should be done to be certain that your patient does not have one. This is a true lesson learned and a teaching tool for those who are not aware of the possible morbidities and mortality associated with acute DVT. Every podiatrist in practice will experience a patient with an acute DVT some time in their practice and, therefore, everything possible should be done to adhere to the standard of care in diagnosing it and/or reducing the risk.
Joseph S. Borreggine, DPM, Fort Myers, FL
03/07/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1B
From: Aaron Solomon, DPM
The Evans calcaneal osteotomy is a procedure that I have utilized throughout my career. I was told early in my residency training that the Evans is an extremely powerful osteotomy as it can provide triplane correction to an unstable flatfoot. I am not saying anything that those reading this do not already know, and this is not meant to be a treatise on the Evans calcaneal osteotomy. We all know when done correctly this osteotomy greatly helps those with a painful unstable flatfoot.
In my practice, the majority of the people receiving this osteotomy are those who suffer from posterior tibial tendon dysfunction, and it is done in concert with other procedures. Once again, I am not saying anything that my colleagues do not already know. What I and perhaps many of us do not know are the details of the osteotomy performed in the aforementioned litigation. Were the ligaments of the calcaneocuboid joint compromised? Was the long plantar ligament...
Editor's note: Dr. Solomon's extended-length letter can be read here.
03/07/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1A
From: Jay Grife, DPM, JD
Allen, the cases you cite are not typical results and are primarily outliers. Of course, an egregious case led to an excess verdict, that is one above a doctor’s insurance coverage. But most podiatry cases settle for amounts below the typical $250,000 limits. Of course, venues matter when it comes to jury awards.
Personally, I do not subscribe to low limit policies for malpractice coverage but mentioned it because a local group of general surgeons all reduced coverage to $250,000 per doctor and saw a dramatic reduction in lawsuits.
Also, besides asset protection, which I strongly suggest, most excess verdicts can be handled through bankruptcy. Not a great alternative but where available, it's a cure.
Jay Grife, DPM, JD, Jacksonville, FL
03/05/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 2
From: George Jacobson, DPM, Lawrence D Block, DPM
Dr. Jacobs mentions the importance of patient selection. This reminded me of a quote from Dr. David Jacobson (not a relative) while I was his preceptor in 1983, “the best surgeons know when not to cut.”
George Jacobson, DPM, Hollywood, FL
In Dr. Jacobs' response he stated, "No surgery is routine.” I love the phrase that "minor surgery is something that you do to somebody else. If it is on you, it is not minor." When I was a resident, our medical director addressed both the podiatric and medical residents and said the following, which I also love... "There is no such thing as minor surgery, only minor surgeons."
Lawrence D Block, DPM (Retired). Lake Worth, FL
03/05/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1
From: Allen M. Jacobs, DPM
Dr. Grife suggests that with limited malpractice liability insurance, a plaintiff attorney is less inclined to file a malpractice action. This may or may not be true in a particular case. The ability of a plaintiff to seek payment from a podiatrist when the judgement or settlement is in excess of malpractice policy limits varies from state to state. Asset protection is important to consider for any healthcare provider.
In some states under some circumstances, the plaintiff can, for example, place a lien or levies on your personal assets such as bank accounts, homes, etc. You may be required to satisfy a judgment by taking out a loan against your hard earned assets. Sometimes the jury awards are later adjusted. You should consult with an appropriate healthcare attorney regarding asset protection rules and regulations and applicable strategies relevant...
Editor's note: Dr. Jacobs' extended-length letter can be read here.
03/03/2025
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Joseph Borreggine, DPM
It’s quite unfortunate that the limits of liability no longer cover the cost of a malpractice case and it is highly important that podiatrists who perform surgery must consider protecting their assets...or your financial future will be in grave danger. The days are long gone now that your malpractice will be covering all monetary liabilities of the claim filed and possibly charged against you. The insurance companies probably will not be raising limits of liability any time in the near future since they’re in the business of making money.
The $1 million/$3 million claims made policies with limits of liability are from days long ago where we never thought anybody would sue for $1 million, but if you look at this article, you will see how much higher judgments and settlements are as of 2024 data. It’s all fine and good that everybody wants to be a board certified foot and surgeon in the podiatric field. However, everyone who is doing any foot or ankle surgery in this profession should think twice about...
Editor's note: Dr. Borreggine's extended-length leter can be read here.
12/30/2015
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Ira M. Baum, DPM
Assuming the podiatrist had malpractice coverage, who is responsible for the difference between their malpractice coverage limits and the $1,391.666 judgment? If the doctor is responsible, and hypothetically he/she was offered a settlement within the value of their limits, why would anyone challenge a malpractice suit that could bankrupt them? Take ego out of the equation, because the case docket may require the doctor to commit to 2 weeks for trial (2 weeks lost revenue from office) and if he/she wins, there is no financial remuneration.
So even if you win, you lose. The deck is stacked against the doctor. There is a serious need for tort reform. How this is initiated is beyond knowledge base. Maybe somebody could direct the grass roots on the how to get involved in tort reform.
Ira Baum, DPM, Miami, FL
10/23/2015
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Tom DeBenedictis, DPM
Twenty years ago, Dr. Jack Gorman was the "expert" witness against me in a malpractice case involving a post-operative infection. The plaintiff hired Dr. Gorman after reading his advertisement in a legal journal where he offered his services. At the time, he was so busy, he was unable to come to New Jersey, so my attorney had to go to PA and tape his testimony.
I also won my case, but Dr. Gorman at that time was well known to the attorneys on both sides of the aisle. The case would never have gone to trial if it was not for his testimony giving the plaintiff false hope, me a great deal of stress, and in many cases, just wasting a great deal of time and money. The only person profiting by these cases is Dr. Jack Gorman.
Tom DeBenedictis, DPM, Union City, NJ
10/18/2014
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Peter Bregman, DPM
I am not sure whether there is an issue performing neurectomies in adjacent webspaces, but what I am sure of is that if this surgeon did decompressions in this case, it wouldn't have gone to court.
02/22/2014
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER)
From: Bryan C. Markinson, DPM
Once again another discourse about the righteousness of defense experts and their loathsome plaintiff expert counterparts. While the debate is perpetual, it simply hinges too much on our visceral reactions in this space. Of course, in this debate, it's easy to find support for the defense side, harder for the plaintiff side.
Making the statement, "I will never review for the plaintiff again (Jacobson)" and rationalizing it with, "They'll always find someone to testify against the truth," is simply out of touch and quite frankly immature. If Dr. Jacobson found himself on the bad side of a alleged deviation, you bet he would...
Editor's note: Dr. Markinson's extended-length letter can be read here.
02/21/2014
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1A
From: Brian Kiel, DPM
I disagree with Dr. Katzen that a podiatrist should never testify against another podiatrist. To make a sweeping statement like that is not appropriate. I agree that it is wrong for a podiatrist or any physician to make a living as a plaintiff's expert witness. As we all know, there are people like that and that they will say anything to make a buck. However, there are instances when the acts by someone were so egregious that it would be unethical to refuse to evaluate or testify in a case. In a case where someone has to leave the office to do so and not get compensated for that time is unfair. To never testify against another podiatrist just because he or she is a podiatrist can be harmful to the public and allows those who might perpetrate repetitive malpractice to continue to practice unpunished.
02/19/2014
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1A
From: J K. Winckelbach, DPM, Burton Katzen, DPM
I have had the privilege to know Dr. Harris for 48 years, both as a classmate and colleague. Dr. Harris is one of the most honest people I know. He is respected as one of the most knowledgeable podiatrists in his sub-specialty. If he testifies for the plaintiff, then you know he will be as fair as if he were to testify for a defendant. Unfortunately, there ARE bad outcomes, either from inadequate training, bad judgement, or perhaps a cavalier attitude, and those "patients" need to be represented fairly.
Dr. Harris, I am so glad you are all for "fairness" for plaintiffs. I also realize that in rare occasions, you may come across an unscrupulous member of our profession who deserves
to be punished. However, what you failed to mention is how much you profited by trying to "save the world" from these unscrupulous podiatrists.
Let me give you a suggestion. About twenty years ago, I re-operated on a case which had a horrible result. Since I was the only doctor who saw this patient after the original surgery, I was called on to review the case and testify. After reviewing the previous doctor's record, it was obvious...
Editor's note: Dr. Katzen's extended-length letter can be read here.
02/18/2014
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1c
From: Michael M. Rosenblatt, DPM
Dr. Udell makes the point that some serious and egregious errors and malpractice does occur; and that these patients are entitled to a fair representation of their case in court. This usually requires expert testimony by a fellow professional in the same profession.
But the playing field is far from even. DPMs face certain opposition from practitioners who are in financial conflict with us. These allopathic professionals are concerned about financial issues as they relate to podiatry. The one area where we seem to have absolute parity is in our responsibility to patients and the reaction of the legal community to our work.
This financial opposition can result in medical doctors fomenting (frivolous) claims against podiatrists. At no point in our history as a profession have we ever had even close to the resources or power of allopathic medicine. For that reason alone, I think it is clear that those of us who have an opportunity to testify against fellow DPMs (including staff members at DPM colleges) have a responsibility to closely and carefully evaluate each case. Such testimony is highly profitable for the people who do it. But that is not an excuse to abuse that privilege.
02/18/2014
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1B
From: Bryan C. Markinson, DPM, Alison D. Silhanek, DPM
An interpretation of the merits or lack of merit of a negligence case, or the ethical nature of any expert in such cases, SOLELY based on the snapshots reported in PM News is outrageous.
From what I have seen, Dr. Udell indeed is correct that gross negligence occurs, but it is rare. The gross negligence cases suggested by Dr. Udell are few and far between. Let us be honest here. Some podiatry school faculty are taking plaintiff's expert positions to pad their retirement accounts. It is morally bankrupt, our schools have done nothing to regulate it, and it needs to stop. And the only way to stop it is with repeated reminders to them that they are supporting morally bankrupt processes. If there was any way I could influence prospective students from those colleges which engage in this, I would. I hate to think that I am chasing at windmills here, but plaintiff and personal injury attorneys are part of what is wrong in the U.S., and I cannot help myself but try to fight the good fight.
02/18/2014
RESPONSES/COMMENTS (PM JURY VERDICT REPORTER) - PART 1A
From: Edwin J. Harris, DPM
I would like to respond to Drs. Silhanek and Steinberg on their recent comments regarding the posting of the results of a medical malpractice action in the State of New York in which I was expert for the plaintiff. I will state my case and I refuse to get involved in any ongoing debate
with them in this venue.
First, please do not malign Rosalind Franklin or the Dr. William M. Scholl College of Podiatric Medicine. I am a very part-time instructor with the lowest possible academic position, and I do not routinely use my affiliation as a professional credential.
Second, I would remind...
Editor's note: Dr. Harris' extended-length letter can be read here.
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