03/03/2025    Joseph Borreggine, DPM

Unnecessary and Negligent Calcaneal Osteotomy - Oregon

It’s quite unfortunate that the limits of
liability no longer cover the cost of a
malpractice case is highly important that
podiatrist who performs surgery must consider
protecting their assets period 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 anytime 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 below,
you will see how much higher judgments and
settlements are 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 that is doing
any foot or ankle surgery in this profession
should think twice about who they’re doing surgery
on.

If employed by a major corporation or hospital,
you may get extra coverage, but probably not.
However, if you’re in a group practice or as an
individual, I’d really think twice before you
touch a patient that “requires” foot and/or ankle
surgery. Use due diligence when making that
decision. Landmark malpractice settlements of over
a million caliber just give fuel to the fire of
these attorneys who specialize in malpractice
along with the “podiatric experts” who work for
plaintiff attorneys.

Understand that surgery means you are “married” to
that patient probably for the rest of your life.
The way things are going now the malpractice
statute of limitations are no longer just 4 to 6
years. That is, the “discovery” or prior knowledge
of the incident time frame is unfortunately a
misnomer with the crafty legal system which could
go beyond that period of time.

Therefore, choose wisely when picking a patient
to do surgery on, just my advice.

https://calculatemycase.com/medical-
malpractice/average-medical-malpractice-
settlement.

Joseph Borreggine, DPM, Fort Myers, FL

Other messages in this thread:

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03/07/2025    Aaron Solomon, DPM

Unnecessary and Negligent Calcaneal Osteotomy - Oregon (Allen Jacobs,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 cut? Was the osteotomy made
to close or too far from the calcaneocuboid joint,
or was it not parallel to the joint and perhaps
oblique? Or was he simply at the mercy of 12
people not smart enough to get out of jury duty?

As far as awards for plaintiffs in medical
malpractice cases are concerned, there is
certainly a geographical pattern to the amounts
awarded. Drs. Borreggine and Jacobs make a good
point that current malpractice coverage may not be
enough to cover the higher awards. Especially as
foot and ankle surgeons are doing more advanced
reconstructive procedures. Dr. Jacobs further
discussed asset protection. "Nothing is off
limits, they will take your house if they can," a
PICA attorney once told me. Plaintiff attorneys
most definitely do wealth assessment. At the end
of the day, it is all about the money. In whose
name are your assets? You? Your spouse? Once
again, as Dr. Jacobs said, talk to an attorney
about wealth and asset protection as laws differ
from state to state.

I also agree with the point made by Dr. Grife
about expert witnesses for medical malpractice
cases. I do believe we need to police our own, and
a plaintiff attorney should seek a true expert to
give testimony. It is the responsibility of
experts to offer testimony if there is a
legitimate claim of negligence. Just as a defense
expert must determine if a claim of malpractice is
defensible and an expert can offer testimony to
help exonerate the defendant of any claim of
negligence. They also have a responsibility to
advise the defendant and their counsel if it is in
their best interest to seek a settlement. We again
do not know if this was ever discussed between the
parties in the above-mentioned lawsuit. One size
fits all is not how an expert witness should be
chosen by either defense or plaintiff counsel. The
hired guns, as Dr. Grife called them, are ready to
testify for their respective lawyers who just need
to send the check. The claim may or may not be
legitimate and the physician giving testimony may
or may not be an expert in the substance of the
claim.

“The foot and ankle surgical expert witness shall
provide opinions and/or factual testimony in a
fair and impartial manner. The foot and ankle
surgical expert witness shall evaluate the medical
condition and care provided in light of generally
accepted practice at the time, place and in the
context of care delivered.” These are not my
words. They are taken from the ACFAS guidelines
for expert witnesses. Take some time to read the
affirmation statement that Fellows of the college
are to sign. Giving fair, honest and
knowledgeable testimony in malpractice cases is
sacrosanct. Experts should be afforded
renumeration from plaintiff and defense counsel
for their time and expertise, but they must be
experts.
Aaron Solomon, DPM, Fort Oglethorpe, GA

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03/05/2025    Allen M. Jacobs, DPM

Unnecessary and Negligent Calcaneal Osteotomy - Oregon (Jay Grife, DPM, JD)

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 importantly 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
judgement by taking out a loan against your hard
earned assets. Sometimes the jury awards are later
adjusted. You should consult with an appropriate
health care attorney regarding asset protection
rules and regulations and applicable strategies
relevant to the state in which you practice. You
must do so prior to any claim made against you to
avoid an allegation of fraudulent transfer of
assets.

PM news cited a recent $3,000,000 verdict against
a podiatrist. Two years ago, a plaintiff prevailed
in obtaining a total of $5,000,000 from an ORIF of
an ankle fracture in which there was alleged nerve
injury and CRPS. I have personally seen awards of
$1,000,000 for an Akin procedure, $1,500,000 for a
sesamoidectomy. The famous Rothman orthopedic
institute recently lost a $43,500,000 verdict
following a knee surgery on a special teams payer
for the Philadelphia Eagles.

Dr. Borreggine may be correct. It may be time to
reconsider the $1,000,000/$3,000,000 policy as
adequate in today’s world. Studies specifically on
foot and ankle surgery indicate an average” jury
verdict of around $900,000. This would imply
awards greater than $1,000,000 are neither rare
nor uncommon. You would be well served to research
the rules and regulations in your particular
locality, and consider appropriate actions as you
deem to be necessary for your individual
circumstances. Do not assume personal assets are
always exempt from judgment.

Allen M. Jacobs, DPM, St. Louis, MO

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03/04/2025    Allen M. Jacobs, DPM

Unnecessary and Negligent Calcaneal Osteotomy - Oregon (Joseph Borreggine, DPM)

Here are the numbers that I was able to research.
The average podiatry malpractice settlement is
reported as $390,000. However, series
complications such as leg amputation in excess of
$500,000. Harnett, et al (Orthop Review 12(1)
2020) reported that with reference to foot surgery
claims, 76.4% are against podiatrists, 15.3%
against orthopedic surgeons. Of the claims against
podiatrists, 94.5% involved elective foot surgery.
Of cases which go to court, plaintiff victories
against a podiatrists occur in 25.5% of cases with
an average award of $911,884. In this study, 83%
of plaintiffs were female, and New York was the
most frequent site of podiatric malpractice
(38.9%).

In another study, Kadakia, et al (JFAS 61(1),
2022) noted that forefoot surgery was the most
common issue (65%) and that adult females were the
most common plaintiff. Defendant verdicts were
returned in 73% of cases. An NIH study also
suggested that 94.5% of malpractice cases against
podiatrists followed elective foot surgery, with
ongoing pain and/or deformity the most common
allegations. Megalla et al (JFAS Sept-Oct 2024)
reported on hindfoot-ankle malpractice claims
noting defense verdicts in 73%, with an average
plaintiff award of $853, 863.

Perhaps 20 years ago, Richard Boone, Esq. once
made the following observation to me; he noted
that podiatric surgery was akin to cosmetic
plastic surgery, a lot of females and a lot of
elective surgery. I believe that he was correct,
as the previous data would suggest.

We know nothing regarding the details of the
recent $3,000,000 calcaneal osteotomy case noted
in PM news. Therefore, we cannot arrive at any
conclusions regarding this particular case. There
are however certain common threads to many
podiatric surgical malpractice cases. Unrealistic
expectations by the patient undergoing foot
surgery has been repeatedly cited in literature as
problematic. Insufficient documentation by the
surgeon regarding the indications for the
procedure, associated disability, informed consent
discussions are a problem. Fromm my observations,
poor patient selection and not understanding when
to say NO is not uncommon. According to data from
the Doctors malpractice company, improper
management of the surgical patient is an issue in
41% of cases, improper performance of surgery in
26% of cases. Most common is bunionectomy with
osteotomy (17%).

The concept of elective surgery is really that of
discretionary surgery. The concept of necessary
and unnecessary surgery in medicine is relative
and is situational, hence the need for patient
understanding and good supportive documentation.
No surgery is routine, I love the phrase that "
minor surgery is something that you do to somebody
else. If it is you it is not minor". NO surgery is
free from potential complications and sequela or
potential failure. Unnecessary surgery that is not
needed, not indicated, and not in the best
interest of the patient when weighed against
other non-operative options available. The
question is who measures or determines that a
particular surgery was unnecessary? Not
infrequently it is a jury. Unnecessary surgery is
surgery that does not benefit the patient, surgery
which imparts a risk to a patient with no or
minimal benefit available to the patient.

I recently came across plaintiff lawyer ads for
poor Lapiplasty outcomes. We saw this with ads for
Cartiva implants. Here is St. Louis, there were
ads running for poor outcomes from great toe
implant surgeries.

Over quite some years, I have had experience as
both a defense and plaintiff "expert witness" in
alleged podiatric medical malpractice cases.
Sadly, even absent negligent care, some foot and
ankle surgery does cause pain and suffering,
economic loss to the patient, and result in life-
altering disability and loss of quality of life.
That is a reality. A plaintiff jury verdict is not
proof of negligence or unnecessary surgery. We do
not know all the nuances of the case which led to
the conclusion the jury reached. Conversely, "not
guilty" does not mean innocent. It means you "beat
the rap" as one famous lawyer stated.

Allen M. Jacobs, DPM, St. Louis, MO