03/30/2019 Indiana Jury Verdict Reporter
Alleged Failure to Recognize Signs of a Bone Infection During Follow-up Care (Indiana)
Case Summary: In October of 2011, Angela Wilcox,
then age 43, began experiencing problems with her
left big toe. She claimed the pain was so severe
it led her to stop working. Approximately six
months later, on 4-30-12, Wilcox was referred to
Defendant podiatrist to deal with the problem.
Defendant podiatrist observed that Wilcox had a
brittle, discolored, and diseased toenail on her
left big toe. He diagnosed her with a fungal
infection in the nail, as well as with a bunion
on her left foot, and both a bone spur and a
pinched nerve in her left big toe.
One month later, on 5-30-12, Wilcox underwent
four surgical procedures by Defendant podiatrist
to correct these problems. One of the procedures
included the complete removal of the nail on
Wilcox's left big toe. The surgeries themselves
were uneventful, and Wilcox saw or communicated
with Defendant podiatrist over the next few
months for follow-up care.
Although Wilcox reported significant pain in her
foot and leg, her toe seemed to be healing
appropriately during the months of June and July.
In early August, however, Wilcox dropped a heavy
cell phone on her toe, thereby knocking off the
scab from the nail bed.
Defendant podiatrist ordered x-rays and assessed
the trauma to Wilcox's toe. He diagnosed a
fracture near the toenail bed and a hematoma
above the bed. Defendant podiatrist performed a
debridement of the hematoma on 8-15-12. He
thereafter determined that the nail bed was
normal and there was no infection present.
Defendant podiatrist saw Wilcox twice more after
the debridement for follow-up evaluations. One
such visit was on 8-27-12, and the other was on
9-13-12.
During the 9-13-12 visit, Defendant podiatrist
observed that Wilcox's scab had returned but was
much thicker than before, signaling a possibly
non-healing toe
.
Given the unusual appearance of the scab and the
absence of any signs of infection, Defendant
podiatrist referred Wilcox to a dermatologist for
further evaluation. It was not until late
September that Wilcox's family physician
identified signs of a gangrenous bone infection
in her toe.
Wilcox's family doctor sent her to IU Health
Methodist Hospital in Indianapolis. By that time
Wilcox's condition had progressed to the point
that her medical team considered it necessary to
amputate her left big toe. Wilcox claims this has
left her with significant pain and limited
mobility.
Wilcox presented the case to a medical review
panel comprised of three podiatrists. They
included Dr. Amy Jelinek of Batesville and Dr.
Jeffrey Stevens of Indianapolis. The record does
not identify the third member of the panel.
Wilcox was not critical of Defendant podiatrist’s
performance of the surgeries themselves.
Instead, she focused her criticism exclusively on
his follow-up care. According to Wilcox,
Defendant podiatrist should have done a bone
biopsy and recognized the signs of a bone
infection, he should have attempted more
aggressive antibiotic treatment, and he should
have referred her to an infectious disease
specialist instead of to a dermatologist.
The medical review panel issued the unanimous
opinion that Defendant podiatrist’s follow-up
care did not constitute a breach of the podiatry
standard of care. Wilcox filed suit Defendant
podiatrist and sought special damages in the
amount of $ 1,250,000. Her retained experts
included Dr. Kalman Baruch, Podiatry, Savannah,
GA.
Defendant podiatrist defended the case and
disputed whether Wilcox had been suffering from a
bone infection at all. According to him, there
were no signs or symptoms of any such infection
during his treatment of her.
Additionally, Defendant podiatrist presented
surveillance evidence that called into question
Wilcox's claims about her pain and physical
limitations following the amputation. The
identified defense podiatry expert was Dr.
Douglas Blacklidge of Kokomo.
The case proceeded to trial in Terre Haute.
Interestingly, the court ruled that Wilcox would
not be allowed to claim or present evidence for
permanent disability because she had not
previously disclosed any such claim or provided
the defense with evidence of an impairment
rating.
Another interesting evidentiary issue arose
shortly before trial when Wilcox discovered a
digital camera and cell phone that her husband
had used to take pictures of her toe. She also
claimed another such cell phone existed but had
been lost.
The trial was continued for slightly more than
two months to allow for further discovery
regarding these newly discovered digital images,
some of which had no time or date stamps. Based
on the results of forensic examination of the
images, the court ruled that Wilcox had committed
negligent spoliation.
The case was reset on the calendar for August. In
light of the earlier evidentiary ruling regarding
the digital images, the court issued a spoliation
instruction that the jury could find that the
missing images would have been harmful to
Wilcox's case.
Result: Verdict: Defense verdict on
liability.After five days of proof, the jury
deliberated for approximately five hours before
returning a verdict for Defendant podiatrist. The
court entered a defense judgment.
Plaintiff’s expert witness: Dr. Kalman Baruch,
Savannah, GA
Defense’s expert witness: Dr. Douglas Blacklidge
of Kokomo, IN
Source: Indiana Jury Verdict Reporter
