03/11/2025    Allen M. Jacobs, DPM

"Nuclear" Malpractice Awards

So called "nuclear" malpractice awards may be
outliers, but statistical protection is not
absolute protection. As podiatrists do more and
more surgery, engage in more complex surgeries,
treat more patients with diabetes, manage more
ulcerations, and treat more patients who have
multiple comorbidities, the potential for poor
outcomes and large malpractice judgement would be
expected to increase. I was a defense expert in a
recent case in which the plaintiff asked for
$76,000,000. The jury came back with a $4,000,000
verdict.

According to AI generated data, in 2023 there were
57 malpractice verdicts greater than $10,000,000.
According to the international reassurance company
TransRe, mega malpractice awards are increasing in
number. According to author Alicia Gallegos, 2023
"blew away every record previously set among high
malpractice verdicts". Although Florida, New York,
and Illinois previously saw the highest claims
award in many cases, this is no longer the case.

Not only has podiatry changed, and the nature of
our patient base changed, so to has the mindset of
jury members. According to Ms. Gallegos, the
reasons for increasing malpractice awards are
many. One theory is that people have emerged
angrier from the COVID pandemic, and you generally
do not want an angry jury. People are also angry
at the healthcare system, and you may be the
recipient of that anger. Consolidation has
depersonalized patient care and diminished the
doctor-patient relationship. People now see
medicine as big business.

As Ms. Gallegos notes, jurors may attempt to right
what they perceive to be healthcare wrongs by
punishing you. There is also the increasing trend
of litigation financing, in which the plaintiff
lawyer obtains financial support to pursue the
case in exchange for a portion of the award,
putting the plaintiff lawyer on equal footing
withe malpractice carrier .By the way, there are
now more that 64,000 plaintiff law firms in the
United States.

There is also the matter of the emotional distress
a malpractice case may cause an under-insured
doctor. Some years ago, I was a defense expert in
a lost leg case following a rearfoot arthrodesis.
The podiatric surgeon was under-insured ($250,000)
on the case. Although the defense prevailed, the
stress and mental anguish of the defendant, facing
possible financial ruin, was incredible to behold.
The doctor retired after the defense verdict. In
another case in which I was a defense expert, a
podiatrist suffered significant mental distress
and left practice in a case of death following a
pulmonary embolism subsequent to a distal
metaphyseal osteotomy for bunion correction in a
seemingly healthy patient. In another case, a
young, healthy patient died following the
administration of a prophylactic antibiotic for a
ganglionic cyst excision.

In short, you just never know who will develop
CRPS, a fatal PE, a lost leg from a rapidly
progressive diabetic foot infection. Errors of
nature occur.

Know the laws in your state, and for the sake of
yourself and your family consider appropriate
asset protection strategies. Work with a good
healthcare lawyer. Maintain reasonable malpractice
coverage with reputable carriers. Follow the
principles of medical ethics: patient autonomy,
beneficence, non-malfeasance, and justice. William
Osler noted that the patient with an illness must
recover twice: once from the illness and once from
the treatment. Do your best to minimize the
latter. And remember the words of Benjamin
Franklin; " The best doctors give the least
medicines".

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

Other messages in this thread:

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03/20/2025    Rod Tomczak, DPM, MD, EdD

RE: "Nuclear" Malpractice Awards (Allen M. Jacobs, DPM)

I think the "pre-op clearance" is to "stratisfy"
(sic) the patient, similar to the ASA
classification of patients and to satisfy the
internist or GP when surgery was done in earlier
times when the family doctor knew the patient and
the podiatrist was not able to act like an
independent contractor and take over the patient's
care without notifying the family doc.

Historically, and by that I mean everyone before
you and I, and most podiatrists before the 3-year
residency programs who do not recognize a subtly
sick patient and the pre-op anesthesia visit was
not much more than a discussion of a golf handicap
or how the grandkids were doing. I was perfectly
happy knowing that my conversations and
examinations of patients revealed a sick patient.
I was pleased to know I could call the family
doctor and talk physician speak explaining my
concerns, and not the night before a 7:30 am case.

I have a friend who is an Italian orthopedic
surgeon with a sister who is a PM+R physician and
a brother who is an internist. Their mid-80s year
old father had a hammertoe that needed correcting.
The family figured that as long as the father
needed an H and P he should have a full court
press work-up a few days prior to the surgery. The
father passed with flying colors, including a
Thallium stress test.

The next day the wife found her husband and the
father slumped over his last supper/lunch of an
Italian sausage sub with peppers and onions. What
did he die of? A cousin was a pathologist who
performed an autopsy. He found a thrombus in the
LAD coronary artery. He listed that as the cause
of death. The old fellow passed away from TMB. Too
many birthdays. Sometimes there’s no one to blame
for catastrophes. This old fellow passed enjoying
his last meal. Likely he would have died soon
whether he was going to have a hammertoe
correction or not. We live in a society where we
feel the need to impugn somebody every time there
is an untoward outcome.

Rod Tomczak, DPM, MD, EdD, Columbus, OH

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03/18/2025    Allen M. Jacobs, DPM

"Nuclear" Malpractice Awards (Elliot Udell, DPM)

The question of who is responsible for
thromboembolic episodes in the podiatry patient is
an important one, with reference to patient safety
and secondarily malpractice allegations. DVT and
pulmonary embolism are a major cause for alleged
medical negligence against podiatric physicians.
Dr. Chaskin posits, and Dr. Udell comments, on the
suggestion that the physician who "cleared the
patient" is responsible for the thromboembolism. I
believe the problem is a bit more complex.

Many physicians maintain the position that they do
not "clear" a patient for surgery, but rather
"risk stratify" the patient, as the need for
surgery and the decision to proceed with surgery
is generally that of the surgeon. Under certain
circumstances, in theory, an argument could be
advanced that the "clearing physician" may be
partially to totally liable for an episode of
DVT/pulmonary embolism. As a hypothetical, you
might refer a patient with known Factor V Leiden
mutation or family history of thrombophilia and
specifically ask whether anticoagulation should be
employed following surgery, and what protocol
should be followed.

The issue of thromboembolism is not as simple as
surgical "clearance". DVT and fatal pulmonary
emboli or DVT and post-phlebitic syndrome may
occur following any period of non-weight bearing
or immobilization, such as treatment of a diabetic
ulceration, management of Charcot's joint disease,
or non-operative fracture management. Under these
and many other circumstances, it is not the
enigmatic "standard of care" to have the patient
cleared by an MD or DO. Rather, the podiatric
physician has two basic choices: risk assess the
patient risk for thromboembolism and employ
appropriate preventive measures, or refer every
patient who will be immobilized or non-weight-
bearing to an MD or DO for "clearance". I suspect
the latter circumstance is rare.

"Clearance" of the patient with reference to DVT
may not be quite as straightforward as implied by
those suggesting this protocol. Coagulopathies
predisposing a patient to DVT (eg: Protein C
deficiency, Protein S deficiency, MTHFR
abnormalities) are diagnosed frequently if not
most commonly diagnosed only following a
thromboembolic event, with the patient having no
prior history of DVT/pulmonary embolism, and no
known history of a family history of
thrombophilia. Under such circumstances, standard
"clearance" is of no patient benefit.

Clinical practice guidelines regarding DVT
prophylaxis with reference to foot and ankle
surgery have been published by ACFAS, AAOS, AOFAS.
The published literature is inconsistent at best,
at times contradictory, regarding the need for
prophylaxis, appropriate regimen to be utilized,
and on whom prophylaxis should be employed. Most
practice guidelines summarize by stating that each
individual should be evaluated for their
individual risk factors, and an appropriate
decision employed for each case.

The medical-legal problem is that in many
instances, when a patient suffers a thromboembolic
episode, it is easy to look in hindsight with bias
and start counting potential risk factors (eg:
elevated BMI, lower extremity surgery,
immobilization or relative decreased activity
level, history of cancer, venous insufficiency,
smoking, this list can go on and on). Do you
employ prophylactic anticoagulation for every
diabetic ulcer you treat? After all, the patient
has DM with which increased coagulation propensity
is known to occur, they have an elevated BMI,
they are immobilized and/or non-weight-bearing,
perhaps the have chronic venous insufficiency. Do
you prescribe prophylactic anticoagulation to an
overweight patient on hormone therapy whom you
place in a CAM boot for a second metatarsal
fracture?

This is the essence of the problem, not
"clearance" by an MD or DO. It is the suggestion
that the podiatric physician was not attentive and
vigilant in recognizing the "at risk" patient as
concluded by a plaintiff "expert". As an example,
I was a defense expert in a wrongful death suit
against a podiatrist for pulmonary embolism. The
patient was a healthy 31 year old female with no
comorbidities. She underwent elliptical excision
af a 2mm in situ melanoma of a hallux IPJ joint.
She died one week later of a fatal PE. The
plaintiff "expert podiatrist" stated that she was
at high risk for PE because she had cancer ( a 2mm
in situ melanoma completely excised with clean
margins), an ankle tourniquet was utilized, was on
birth control pills, had lower extremity surgery,
was told to rest her foot some and was therefore
less active than normal, and was of German decent
therefore at higher statistical risk for Factor V
Leiden mutation (although she was never diagnosed
as such). You see how easy this is? Six, count-em
six predisposing factors allegedly present which
should have alerted the podiatrist that this was a
"high risk" patient. At least according to the
plaintiff expert podiatrist.

I have been an expert in a number of similar
cases. Did you known that a patient with gout has
been shown to be a 2X the risk of DVT than age and
sex matched non-gout patients? Should you
therefore utilize a NOAC or ASA or LMWH on your
gout patients with a fifth metatarsal fracte you
are treating with a CAM boot? It is just that
easy to make a wouda, coulda, shoulda case with
thromboembolism litigation.

Yes, there are some patients who require
preventive intervention. However, anticoagulants
are not 100% successful, and carry their own
specter of cost, complications, and sequela. I
have treated multiple patients in my 50 years with
a TMA for the effects of HIT associated with
heparin use. The actual incidence of
thromboembolism, particularly fatal pulmonary
embolism, is extremely low in almost every
published study. One study suggested that you
would have to utilize prophylaxis in 10,000 foot
and ankle patients in order to prevent one fatal
PE.

Finally, there is the issue of failure to
recognize signs and symptoms of thromboembolic
disease. When a patient is non-weight-bearing or
immobilized, the medical record should include
reasonable questioning and reasonable screening
for DVT/PE. Sadly, many cases occur suddenly
absent any preceding signs or symptoms. With
reference to litigation, it is far better to
document a negative examination than no
evaluation. Whenever there is a question of
differential diagnosis, it is best to ask yourself
what is the worst diagnosis this could be, and
rule that out first. That means D-dimer, or
appropriate venous studies, or referral to the ED,
or other appropriate investigation. remember, even
venous doppler studies may be negative if a
smaller clot has embolized prior to the study.

DVT and pulmonary embolism remains an important
risk to our patients, and a potential litigation
source. It is not a problem restricted to surgical
patients. The suggestion that simply having an MD
or DO "clear the patient" does not protect the
patient following the initial MD or DO
"clearance". It is not standard of care to screen
all patients for the array of coagulopathies which
are known to exists. We do the best we can to
attempt to identify high risk patients or high
risk circumstances, to check for signs and/or
symptoms of thromboembolic disease, and act
accordingly. However, even with ideal evaluation
and screening, the best we can offer is
statistical but not absolute protection to our
patients. As my old professor Dr. James Ganley
correctly noted, "the only place they practice
perfect medicine in the the offices of plaintiffs
lawyer.

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