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
