03/10/2025    Allen M. Jacobs, DPM

NYCPM Medilaw Club and Touro Law Club Discuss Malpractice Case (Ivar E. Roth, DPM, MPH)

Howard Smith is a retired gynecologist who
regularly publishes on issues of malpractice. Dr.
Roth tells us that he has reviewed numerous
malpractice cases in which it was his opinion that
unnecessary or poorly performed surgeries were the
basis of malpractice claims. Every malpractice
case must have a signed attestation of malpractice
in some form by a healthcare provider, typically a
podiatrist in podiatric malpractice cases. Dr.
Smith provided some interesting data to consider,
albeit all malpractice claims not just podiatric.

Consider the following noted by Dr. Smith: There
are 85,000 malpractice cases filed every year. Of
these, 56,000 are summarily dropped. 28,000 are
settled. 300 are plaintiff verdicts. Therefore,
only 1/3 of the 85,000 filed lawsuits are
POTENTIALLY meritorious. 2/3 of the suits filed
are frivolous. Yet, to file that suit, some so-
called "expert" agreed the case was meritorious
and advised the plaintiff lawyer as such. and
signed a certificate of merit. Remember, without
an expert witness there is no malpractice case
(with rare exceptions in some states such as res
ipsa cases").

In 42% of the cases, a subsequent treating doctor
told the patient that the prior treating doctor
was negligent. In 71% of the cases the plaintiff
testimony was that a subsequent treating doctor
implied malpractice.

Unnecessary surgery is situational in medicine.
Are breast implants for cosmesis really a
necessary surgery? Is surgery for an asymptomatic
bunion deformity necessary? On average, in general
medicine, is has been suggested that unnecessary
surgeries average 30%. This is not a podiatry
centric problem. Many studies suggest that
unnecessary spinal fusion surgeries or knee
arthroscopic surgeries are common examples.
Avoiding unnecessary surgery is the most pragmatic
way to avoid surgical complications.

Ultimately, the decision to undergo surgery is
made by the patient. That decision should be based
on truthful discussions with the patient,
remembering that autonomy if the first and basic
principle of medical ethics. Do not let hindsight
bias and his friends shoulda, coulda, woulda allow
creeping determinism to influence your evaluation
of prior care.

Sir William Osler taught us over 100 years ago
(no, I was not there personally), "medicine is a
science of uncertainty and an art of probability".
Remember that when you pass judgement on the work
of others that you have been asked to evaluate.

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

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