02/13/2014    

Alleged Improper Diagnosis, Informed Consent, and Improperly Performed Surgery (NY)

Case Summary: The plaintiff, a 16-year-old male,
presented to the defendant podiatrist with
complaints of pain on the instep of both feet
which he said was exacerbated by increased
activity. After conservative treatment failed, the
defendant performed Young's tenosuspension with
mba subtalar arthrodesis implant and posterior
tibial tendon augmentation of both feet.

The plaintiff ultimately had these implants
removed because of continuing pain, and
transferred his treatment to an orthopedic surgeon
who fused several joints in the feet. The
plaintiff commenced this action against the
defendant alleging improper diagnosis, failure to
appropriately advise the plaintiff of the risks,
and improperly performing surgery on an
adolescent.

The defendant argued that the plaintiff's
condition did benefit from the surgery, that he
had appropriately advised the plaintiff of all
risks, and that the plaintiff had consented to the
surgery through his mother. After the plaintiff
unsuccessfully tried conservative treatment
recommended by the defendant including medications
and shoe inserts, the defendant took x-rays which
revealed flexible pes planus deformity (flat feet)
and tibial tendinitis.

Again, the defendant recommended conservative
treatment including custom orthotics or other
options, including surgery. When the orthotics
were not effective, the plaintiff, through his
mother, requested surgery.

The defendant first performed to the plaintiff's
right foot Young's tenosuspension with an MBA
subtalar arthrodesis implant and posterior tibial
tendon augmentation. The plaintiff was recovering
uneventfully, but two months after the procedure,
he was riding a bicycle when he put his foot,
which was still in a cast, down on the ground and
heard a pop. The defendant treated the new pain
conservatively with pain management. He then
underwent the Young's tenosuspension with mba
subtalar arthrodesis implant and posterior tibial
tendon augmentation in the left foot.

The plaintiff claimed to have continuing pain in
the right foot. One year later, the defendant
removed both implants. The plaintiff transferred
his care to an orthopedic surgeon who fused joints
in both feet. The plaintiff claimed that he
developed arthritis and pain. He then commenced
this action alleging medical malpractice.

The plaintiff, who at the time of trial was a
college student, alleged that he continued to be
in pain that affected his daily living, his
walking, his ability to attain his goal of
becoming a police officer, and his ability to hang
out with his friends. The plaintiff also
maintained that his school grades were poorly
impacted by his condition.

The defense argued that it was the plaintiff's
marijuana consumption that accounted for the
plaintiff's drop in grades. On his behalf, the
plaintiff's priest testified as to the veracity of
the plaintiff.

The plaintiff demanded $ 1,000,000. No offer of
settlement was made.

Result: After a two week trial and after
deliberating for five hours, the jury, in a vote
of five to one, returned a defense verdict.

Plaintiff Expert(s) Plaintiff's orthopedic surgery
expert: Christopher Ritter (treating physician)
from Buffalo, NY Plaintiff's podiatry expert:
Edwin Harris, DPM from Westchester, IL

Defendant Expert(s) Defendant's podiatry expert:
Charles Lombardi, DPM from Bayside, NY

Source: Jury Verdict Review Volume 30, Issue 2

Other messages in this thread:

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02/22/2014    Bryan C. Markinson, DPM

Alleged Improper Diagnosis, Informed Consent, and Improperly Performed Surgery (NY) (George Jacobson, 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, its easy to find support for the
defense side, harder for the plaintiff side.

Making a statement that "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 need a competent plaintiff's
expert to point out to the suing side that the
case has no merit.

Does Dr. Jacobson and most who believe as he does,
think that there is no one out there that could do
that? Oh and yes, they get paid for that opinion
also. I have done it several times and know many
others that do. I also know many defense-only scum
who would defend Josef Mengele, and do it multiple
times. Some of them are also faculty and
professors at our esteemed institutions. They say
things in court that they would never say in a
classroom. And yes, there are plaintiffs experts
who will say anything, and even testify in cases
for which they have no expertise. But the scum
floats on both sides of the aisle, of that I am
certain and have born witness.

I have also seen attorneys on both sides of a case
hire the experts from the other side for other
pending cases! Doesn't that make you feel like you
have a real dedicated attorney out for only your
interest? They should bring back malpractice
review panels of impartial, paid, and blinded
trained experts prior to a case getting the go
ahead. The person bringing suit should pay the
cost of this, just like paying a fee for suing
someone in small claims court. Make the fee big
enough for people or attorneys to think twice and
award return of the fee if they are victorious.

3/4 of these cases are defense verdicts. If truly
disingenuous plaintiffs experts are to blame, how
much more in favor of defense would the balance go
and still protect the public from the "real"
negligence? Think about it.

Bryan C. Markinson, DPM, NY, NY,
bryan.markinson@mountsinai.org

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02/19/2014    Barry Mullen, DPM

Alleged Improper Diagnosis, Informed Consent, and Improperly Performed Surgery (NY) (Elliot Udell, DPM)

Many comments have been made, but no solutions
have been offered! I agree with Dr. Udell about
the need to compensate legitimate malpractice
victims. BUT, current scales are grossly tipped
fostering the litigious climate we practice in.
The resultant, incessant fear grossly affects how
competent physicians practice and in part,
escalates healthcare costs. The solution starts
with the adoption and implementation of meaningful
malpractice tort reform. Here are ideas. Dialogue
is welcome.

1) Adopt a "loser pay" system (U.S. only
"civilized" country not to incorporate) = ends
frivolous lawsuits! The stumbling block is how to
protect the rights of indigent citizens victimized
by medical negligence. THAT is what I do not have
the answer for, but am confident some brilliant
economists can think tank.

2) Expert witness accountability- those who
testify MUST be held accountable to a set of LEGAL
standards which, if breached via false or
embellished testimony, become punishable by
license suspension, termination (for repeat acts)
and/or fines! What jurors need to hear is the
truth regarding the medical facts of a given case
from plaintiff AND defense expert witnesses!
Nothing more/less. This is such a simple concept
that I don't even know why it needs to be
mentioned, yet isn't enforced.

3) Create a professional panel comprised of 1
attorney and 2 specialists germane to a given
malpractice case to determine whether sufficient
evidence exists to prove negligence occurred
BEFORE a given case may be submitted to the
courts. PAY that panel and make their decision
binding. Why can't that salary be paid by a small
percentage of ALL the malpractice premium dollars
paid by physicians?

4) Without a loser pay system, pre-trial
settlements need to be reduced to a fraction of
what it costs to defend a case- I believe current
market is $ 60K to defend and have same panel
arbitrate that "award".

5) Objectivity utilizing economic expert analysis
of monetary awards levied to malpractice victims.
Malpractice awards are at staggering rates and
drive up premium costs. Ensure the compensation
matches the adverse sequellae created from a poor
medical outcome from gross medical negligence.

6) Lastly, and probably most importantly,
MANDATORY EDUCATION for repeat malpractice
offenders payable by guilty defendants! both in
performance of medical/surgical/diagnostic care,
AND patient interaction/communications. ie. after
3rd guilty malpractice verdict, one must re-learn
"how to practice medicine commensurate with my
specialty 101" AND re-learn "how to win friends
and influence people" to establish trustworthy
relationships with one's patients. If one refuses,
one's medical license is suspended until
completed....just like w/ driver's licenses. While
I admit some degree of luck is involved, SKILL
sets do exist to identify "bad" patient risks with
respect to malpractice potential. If a bad aura
exists and one senses it, sometimes one just has
to say NO with respect to the provision of medical
care for a given patient - that is YOUR right as a
physician. How many of us exercise it? I know I
do!
OH...1 last legal point- I feel STRONGLY that a
plaintiff's past malpractice history IS germane to
a case.

Well- that's a start anyway and is certainly not
all inclusive of the many malpractice issues
facing today's society and health care providers.
Now it's your turn to raise additional issues,
suggestions, concerns and solutions to take to our
medico-legal representatives to eventually enact.
If we don't, then we're just whiners forced to
accept the status quo which we all know is
currently...unacceptable.

Barry Mullen, DPM, Hackettstown, NJ,
Yazy630@aol.com

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02/19/2014    Burton J. Katzen, DPM

Alleged Improper Diagnosis, Informed Consent, and Improperly Performed Surgery (NY) (Edwin J Harris, DPM)

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 to
anyone that the notes were changed (about three
full pages on every post op visit how the patient
kept traumatizing the surgery, but saying what a
great job he had done).

I informed the attorney that I would not care to
serve as an expert witness, and he threatened to
subpoena me and force me to testify, which he did.
I gave up an entire day of work, spent 3 1/2 hours
on the witness stand, but refused to take a dime
for my testimony. Not having seen the patient pre-
operatively and not being a handwriting expert, I
also refused to testify on the necessity of the
surgery or the possibility of doctored notes.

Bottom line, Dr. Harris, if you feel you must save
the world, go right ahead, just don't do it for
profit. Being a member of the TUSPM Alumni
Association, whenever I hear about a member of our
faculty testifying against a podiatrist, I always
contact the defendant and ask for a copy of the
deposition and file it for possible later use to
anyone who needs it.

I find it hard to believe how many of our own
members also feel like they also have to "save the
world", - FOR A WHOLE LOT OF PROFIT! Reminds me
of the old joke with the punch line "We're not
arguing what you are, we're just haggling over
price".

Burton J. Katzen, DPM, Temple Hills, MD,
DrburtonK@aol.com

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02/18/2014    Edwin J. Harris, DPM

RE: Alleged Improper Diagnosis, Informed Consent, and Improperly Performed Surgery (NY) (Alison D. Silhanek, DPM, Robert Steinberg, 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 both of you that a
frivolous lawsuit is one that lacks legal merit
and has little or no chance of being won. The
fact that a claim is lost does not imply that it
was frivolous. Frivolity is not an issue when a
plaintiff is injured and requires considerable
additional treatment.

Third, a plaintiff, just as a defendant, is
entitled to expert opinion on the quality and
appropriateness of care rendered. If it is good
enough for defendants to have qualified experts,
should that not be extended to plaintiffs as well?
This is necessary to protect patients and treating
physicians alike.

Fourth, for me personally, I am a "working Doc"
and a practicing pediatric foot and ankle surgeon
who has considerable hands-on experience in the
pathology of this litigation and I perform the
surgery involved in this case. I don't make a
living as an expert. In over forty years of
practice (not counting my own personal malpractice
suit), I have been involved in the workup of six
cases. Three were for the plaintiff and three were
for the defense. After reviewing the cases, I
told two of the plaintiffs' attorneys that they
didn't have a case and I refused to participate. I
told one defense attorney that his case was not
defendable and that he should settle as best as
possible.

I reviewed this New York case in question and
formed the opinions that I expressed in trial
testimony based on my experience and not as an
"expert" willing to say anything for money. I
stand by my opinion and testimony 100%. As you
know, depositions and trial testimony are open to
discovery and anyone can obtain these with minimal
effort. After perusing these data, anyone willing
to invest the time can decide whether this case
was or was not frivolous and whether my opinions
were or were not medically sound.

Fifth, I have no use for colleagues who testify in
ways that bend facts, hide truths, and put on a
play act for the sole purpose of winning a case
without regard to merit or lack thereof. It is
not a game. Both plaintiffs and defendants are
real people and they get hurt if their rights are
trampled on by unscrupulous individuals.

I would make a suggestion. In order to be an
expert for plaintiff or defense, one has to be a
licensed practitioner and almost certainly must be
credentialed by a certifying board as well as be a
member of a state or national society. I submit
that it is about time for the certifying boards,
state and national societies and state licensing
boards to make it a requirement that any time a
licensed practitioner, diplomate or a member of
one of the societies acts as an expert for either
side, he must submit a copy of his deposition and
trial testimony for peer review with the
understanding that he may face sanctioning for
improper behavior - including the loss of license
to practice.

Edwin J. Harris, DPM, Westchester, IL,
Eharrisdpm@AOL.COM