11/11/2022    Chris Robertozzi, DPM

Alleged Malpractice (Virginia) (Jay S. Grife, DPM, JD, MA)

Dr. Grife makes some valid points about how
attorneys for the plaintiff and defense get paid.
That can in itself be a lengthy discussion. I am a
little confused, however, about other statements
that he made, all of which revolve around the word
lie. Webster defines a lie as an “intentionally
false statement or impression”. That is completely
different from the fact that experts are retained
to provide their opinion based upon the facts, in
Dr. Grife’s own words. He asks is the expert lying
who under oath in court testified that the only way
a patient could have tarsal tunnel is if the
patient was confined to a wheelchair? The answer is
yes.

You can go to any podiatric or orthopedic book on
tarsal tunnel and they will list other reasons such
as excessive pronation, posterior tibial
dysfunction, trauma and so on. So, if there is
literature out there that contradicts the expert’s
statement then by Webster’s definition, which I am
using, it is a lie. I am open to hear about other
documented definitions of a lie if it is felt this
one doesn’t define the word lie the way you
understand it.

It is not an opinion when it goes against well
documented literature which makes it a fact.
According to Dr. Grife, experts opine based on the
facts not theoretical assumptions.

The example that I used is 180 degrees at the other
end of the spectrum. Yes, there are multiple
triggers of gout such as food, renal excretion
issues, myeloproliferative disorders and genetics.
However, they all produce the one etiology of gout,
fundamental disturbance in purine biosynthesis.
After looking through rheumatology, medical and
podiatric books on gout, I did a literature search
to learn more about trauma as a cause of gout. I
found nothing that mentions trauma as a cause of
gout. How can it be said that it is possible?
Consequently, by Webster’s definition which I
referenced, it is a lie and cannot potentially be
an accurate statement. I am willing to retract that
if someone can send me literature (just one article
or case study) that shows that trauma is a cause of
gout.

I am not asking anyone to condone the fact that I
want to sanction those who lie about a statement
that could potentially be true when there is no way
that trauma can cause gout. It does not change the
metabolism of purine. We need to stand up for
what Is right. We must make our decisions with
integrity. Yes, the expert witness is to provide
an opinion but that doesn’t mean that it gives the
expert the right to create causes for a diagnosis
or completely ignore the literature.

I certainly don’t have the breath and depth of
experience in litigating malpractice cases as Dr.
Grife. In my limited experience, what I have seen
is that the cases that I have been asked to defend
are patients who have had a bad result from
surgery. The reason for the lawsuit is usually one
of the listed complications on the informed
consent. No doctor wants their patient to have a
bad outcome. It’s bad public relations and they
know it. Are there cases where things are done
inappropriately? Yes, but they are few and far
between. I have only read about them. Fortunately,
I have not been asked to defend one. A majority of
cases are settled at the last minute. The
podiatrist is bullied and intimidated at the
deposition and at any time there is interaction
between the defendant and plaintiff’s attorney so
that he is willing to settle and not go through the
embarrassment in front of a jury.

Charting seems to frequently be a focus. The
thought process is that if the doctor charted
inappropriately then he must have performed the
surgery inappropriately. I will be the first to
admit that the charting could be better in every
case. Nevertheless, poor charting doesn’t
constitute malpractice nor does it imply that the
surgery was done incorrectly. The goal seems to be
to discredit the physician in any fashion possible
to win the case. Justice seems to be lost. The
impression I am left with is that it seems to be
about a win and the money. That isn’t only true for
health care but also pretty much everything else.
Just take a look around at the shortage of things
and the prices when they are available. It really
doesn’t speak well of the type of society we have
become.

The many books I have read about Obamacare and
health care in general, all talk about insurance
companies complaining about over utilization by
doctors. Then, in the next paragraph or two, they
pinpoint the reason for the over utilization as a
defense against malpractice. But at the same time,
they don’t have a solution to the problem.
Everyone pays the price for that as premiums are
based on the previous year’s losses. Even if you
haven’t been sued, the base price of your premium
is based on how everyone has done as a whole,
whether it is by region or national.

I hate it when I start to sound my age but life was
better when I was growing up. My goal is to try and
turn back the hands of time when people weren’t
hurting each other without a legitimate reason
(senseless shootings), when everyone went to the
aid of their neighbor when they were in trouble and
when we helped each other and never thought of
taking advantage of or hurting anyone. I feel sorry
for our children and grandchildren if we continue
down this road. Don’t you want a better world for
them? Then, we need to do something about it. We
must find solutions and be willing to carry them
out for the many problems that plague us. Sophocles
said it best when he said, “Rather fail with honor
than succeed by fraud.”

Chris, Robertozzi, DPM, Newton, NJ

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