03/25/2025    

Podiatrist's Breach of Standard of Care Proved Fatal (PA)

Case Summary: On Nov. 11, 2016, plaintiff’s
decedent Plaintiff, 41, a general contractor, died
due to complications related to a pulmonary
embolism and cardiopulmonary arrest at a hospital
in Allentown. His estate alleged that his death
was the result of substandard care by Defendant
podiatrist. Plaintiff’s wife, on behalf of her
husband’s estate, sued Defendant and his
practice,. The estate alleged that Defendant
failed in his standard of care toward Plaintiff
and further alleged that his failure constituted
medical malpractice.

On Oct. 28, 2016, Defendant surgically repaired
Plaintiff’s left Achilles tendon tear. By November
2, Plaintiff had difficulty using his crutches due
to shortness of breath. Defendant instructed
Plaintiff to take over-the-counter pain
medication. On November 8, Plaintiff woke up
nauseous, dizzy and had a syncopal episode with
loss of consciousness. He was taken by ambulance
to a hospital where he was noted to be tachycardic
and diaphoretic. Upon further testing, Plaintiff
was diagnosed with a pulmonary embolism with
hypotension. Plaintiff was started on an
anticoagulant and transferred to the intensive
care unit.

On November 9, a venous Doppler ultrasound of both
legs found occlusive thrombus within the left
popliteal vein, left posterior tibial vein and
left peroneal vein. Additionally, occlusive
thrombus was found in his right leg, and
anticoagulant medication was continued. On
November 10, Plaintiff’s condition appeared to be
stable, but hours later he experienced shortness
of breath which prompted him to be transferred
back to the intensive care unit.

On the morning of November 11, Plaintiff was
intubated after having suffered
cardiac/cardiopulmonary arrest and metabolic
acidosis. Hours later, he began to show signs of
multisystem organ failure which resulted in him
being put on life support. He was pronounced dead
at 11:03 p.m. The plaintiffs’ expert in pathology,
who performed Plaintiff’s autopsy, opined in his
report that there were significant risk factors
for pulmonary emboli from Plaintiff’s Achilles
surgery, due to prolonged immobility and/or
limited mobility without effective treatment
and/or prophylaxis for deep vein thrombosis. The
expert concluded that Plaintiff’s cause of death
was pulmonary emboli due to deep leg vein
thrombosis following prolonged immobility due to
leg trauma.

The plaintiffs’ expert in podiatry testified that
Defendant, prior to the surgery, failed to assess
whether there was a blood clot causing pain and
swelling, which Plaintiff had experienced.
According to the expert, the standard of care
required Defendant to order a venous ultrasound to
assess for deep vein thrombosis, since
preoperative immobility and/or limited mobility is
associated with an increased risk for post-
operative complications, including deep vein
thrombosis and pulmonary embolism. The expert
opined that Plaintiff’s pre-operative medical
history of obesity and gout are well-known risk
factors for infection and slower healing.

Additionally, the expert stated that intra-
operative use of lower-extremity tourniquets,
which Defendant applied during the surgery,
increases the risk for deep vein thrombosis. The
plaintiffs’ counsel cited Defendant’s deposition
testimony, in which he admitted that he did not
provide Plaintiff or his wife with any written
instructions regarding post-operative movement for
his legs, which counsel said was a departure from
the standard of care. The defense maintained that
Defendant met the standard of care before, during
and after Plaintiff s surgery.

During the November 2 exam of Plaintiff, Defendant
asked him if he had any pain in his chest, any
difficulty breathing and/or had pain in his legs.
The defense cited the medical records which
demonstrated that Defendant assessed Plaintiff’s
left leg and ankle, and the Plaintiff did not have
any complaints of pain. The findings indicated to
Defendant that Plaintiff did not have a blood
clot, the defense asserted. Additionally,
Plaintiff explained to Defendant that he sweats
when he takes Percocet, which prompted Defendant
to prescribe Vicodin for his pain. The defense’s
podiatry expert confirmed that Defendant’s
treatment of Plaintiff met the standard of care.

Result: Plaintiff's verdict $1,000,000

Plaintiff’s podiatric expert: Steven A. Bernstein,
DPM, Fort Lee, NJ

Defendant’s podiatric expert: Edward J.
Pellecchia, DPM, Meadowbrook, PA

Other messages in this thread:

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04/10/2025    Lawrence Oloff, DPM

Podiatrist's Breach of Standard of Care Proved Fatal (PA)

The prophylaxis for DVT, and resultant possible
PE, has been a controversial subject for years.
The postings here reflect that. The discussion has
had statements that it is not our problem as we
are podiatrists. Another stated that a doctor has
had malpractice claims for prescribing blood
thinners and for not.

I would like to share a past experience. I was
attending an Ortho meeting years ago. I was
interested in a lecture reporting the findings of
a multi-center analysis of DVT and PE incidence
following lower extremity surgery. Their findings
suggested that prophylaxis is not recommended as
the vast majority of DVT cases were below the
popliteal vein and as such these were less likely
to result in PE. An attendee came to the
microphone and asked for a show of hands of how
many of those attending the lecture had ever lost
a patient from PE. The number of hands that went
up was a sobering experience.

A good resource to figure this out is by following
our joint replacement surgeons. They deal with
many high-risk patients. You will find that many
have converted to using aspirin, especially the
younger surgeons. Years ago, there was a lot of
debate on this approach, based on the thought that
aspirin worked on the arterial side and DVT is a
venous issue. However, the present trend has been
to use aspirin, with some exceptions such as
people who have suffered PE in the past. There is
data supporting aspirin throughout the literature.
I encourage everyone to read it. Here is one such
article from the NEJM:

Major Extremity Trauma Research Consortium
(METRC); O'Toole RV, Stein DM, O'Hara NN, Frey KP,
Taylor TJ, Scharfstein DO, Carlini AR, Sudini K,
Degani Y, Slobogean GP, Haut ER, Obremskey W,
Firoozabadi R, Bosse MJ, Goldhaber SZ, Marvel D,
Castillo RC. Aspirin or Low-Molecular-Weight
Heparin for Thromboprophylaxis after a Fracture. N
Engl J Med. 2023 Jan 19;388(3):203-213. doi:
10.1056/NEJMoa2205973. PMID: 36652352.

I think you need to approach this in a somewhat
similar thought process as with prophylaxis for
infection. We administer prophylactic antibiotics
in many of our cases to protect our patients from
infections. Similarly, we should exercise similar
precautions for DVT prevention. Our main goal in
patient care is to do no harm and protect our
patients from adverse outcomes and DVT can
potentially have more dire consequences. Your
patients will be safer and you will sleep better
at night.

Lawrence Oloff, DPM, Burlingame, CA

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04/04/2025    Allen M. Jacobs, DPM

Podiatrist's Breach of Standard of Care Proved Fatal (PA) (John Lanthier, DPM)

"Standard of care" is a legal, not medical
concept. The definition of "standard of care" can
and does vary from state to state. Juries are
instructed as to the definition of "standard of
care" in each particular state. For example, in
some states the term average is applied to the
expected care rendered by a podiatrist. However,
in some states fact that a podiatrist provided
less than average care is not assumed to be
negligent care, otherwise 50% of those in practice
would be considered negligent. In other states
terms like "reasonable care" are applied.

Remember however, the interpretation of these
varied definitions will be interpreted by expert
witnesses and lawyers and translated to the jury
as such. This is why the selection of a capable
and experienced lawyer is very important. It is
why the selection of a competent expert witness is
important. It is why the venue and the judge and
many other factors are considered in the
evaluation of each case and its merits for
successful defense.

With specific reference to protocols for post-
operative utilization of anticoagulants, you must
evaluate each patient based on their perceived
individual risk factors and the immobilization or
non-weight bearing status. General recommendations
are available from ACFAS, AOFAS, AAOS, AACP, NICE.
However, when all is said and done each patient
must be evaluated individually. If you wish to
defer this decision making to an alternate health
care provider for whatever reason, than do so.

With reference to the interdiction of
anticoagulants prior to a surgical procedure, it
is generally best to consult or have the patient
consult with the health care provided who
prescribed the anticoagulant. There are some
circumstances, such as uncomplicated atrial
fibrillation without stroke history, no mechanical
valves, no prior history of DVT wherein
anticoagulants can generally be discontinued with
significant increased risk to the patient. There
are other circumstances, such as recent stent
placement or recent acute coronary event in which
anticoagulants should be continued. Under these
circumstances, postpone any non-urgent
discretionary surgery or consult with the
prescribing health care provider.

My mother was on anti-coagulation therapy for
atrial fibrillation. She had no major additional
risk factors. She discontinued her anticoagulants
in preparation for dental work. She died of a
massive pulmonary embolism. You never know, and it
is always best to seek other opinions and protect
the patient as best we can and "share the
liability".

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

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03/31/2025    Paul Kesselman, DPM

Podiatrist's Breach of Standard of Care Proved Fatal (PA) (Allen Jacobs, DPM)

Dr. Jacobs once again has hit the nail on the
head. As for Dr. Chaskin, it’s readily apparent
that his posting is not in touch with reality. A
case in Queens county where Dr. Chaskin practices,
supports the fact that even though a particular
pathology may be out of your scope of practice,
you still have a due diligence to do something
basic. Pick up the phone and make a call to
someone with the expertise to treat that
condition.

DPMs have been screaming about becoming part of
the mainstream healthcare team, yet Dr. Chaskin
seems to want to hide behind an archaic wall,
based solely on the NY licensure system. It seems
he supports shirking from a duty to care even when
we are faced with something which may be beyond
our skills or is out of our state scope of
practice. When was picking up the phone to call a
colleague of another specialty or the ER not
within our scope of practice?

When unsure, make the referral. To drive this
point home, a case from about 20 years ago comes
to mind. An orthopedist placed a patient who had
sustained a first metatarsal base fracture into a
cast. A few weeks later, the patient developed
significant cast pain with no SOB. The patient saw
a podiatrist as the orthopedist was away on
vacation. The podiatrist cut the cast in half and
took x-rays of the foot to monitor the healing
(which was poor as the base had shifted). But
that became a secondary insignificant issue as the
calf was quite taught and Hohman's sign was
positive.

According to Dr. Chaskin, the DPM had no standard
of care to follow as DPMs don't treat DVT. What
may have saved the patient's life, was the action
of the DPM, who urged the patient to seek care
immediately in an ER. This was all very well
documented as were numerous calls over the next
few days to the patient by the DPM. The patient
finally sought care in an ER a few days later when
he did finally develop SOB. Fortunately, the
patient recovered and, in a suit, filed later,
both the DPM and Orthopedic surgeon were named as
defendants. After many months if not years of
angst, the case was dismissed against the DPM with
the judge instructing the plaintiff and
plaintiff's counsel in open court, to apologize to
the DPM and instead thank him for saving his life.

That same day the MD orthopod's case was also
dismissed. An expert witness for the plaintiff who
was a vascular surgeon actually testified that he
agreed that orthopedists generally do not treat
DVT as it is not within their scope of practice
(notice I did not say license). The vascular
surgeon also agreed that he saw no medical
rationale for this patient to be anticoagulated as
the patient did not have other risk factors for
DVT and that cast immobilization is a known factor
in possible development of a DVT.

How do I know all this? Well, I will let you all
figure that out! This case as well as the one
cited by Chaskin and Jacobs all point to some
simple thoughts! Do No Harm and "share the wealth"
all come to mind. The bottom line is that you as a
physician, whether determined by state licensure
or your own skill set, have a duty to refer to
someone who is trained to treat a condition that
you are ill equipped to provide. That is the
standard of care which all health care providers
must subscribe to! Where is the harm in referring
to others?

Paul Kesselman, DPM, Oceanside, NY

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03/28/2025    Allen M. Jacobs, DPM

Podiatrist's Breach of Standard of Care Proved Fatal (PA) (Daniel Chaskin, DPM)

DVT and pulmonary embolism are concerns for any
patient immobilized or non-weight-bearing
regardless of whether or not surgery was
performed. The sophomoric suggestion that a
podiatrist has no obligation to recognize the
signs or symptoms of thromboembolic disease
because limited licensure is both dangerous thing
for the patient and podiatrist as it is hardly
likely to serve as a useful defense in a
malpractice case.

As was noted in a previous correspondence to PM
News, it is very easy to in retrospect list
multiple factors which is taken in aggregate place
a patient in a higher risk category of
thromboembolic disease. In my opinion, this is a
problem with risk assessment scales such as the
Caprini score. Many patients, if not most, have
some factors predisposing them to DVT/PE. Should a
patient suffer from a significant thromboembolic
event while under your care for a Charcot's joint,
diabetic ulcer, fracture, ankle sprain, post
bunion surgery, the question of prophylaxis may
arise.

From a medical-legal aspect, you would be asked
the following: 1. Did this patient have
predisposing factors for thromboembolism; 2. Was
the patient placed in a situation such that the
risk would be anticipated to be increased (e.g.-
immobilization or non-weight-bearing); and 3. If
you had administered DVT prophylaxis is it more
likely than not that the thromboembolic event
could have been prevented. That is reality, not an
argument that if you do not treat a particular
problem you have no duty to the patient to
recognize and refer. If a patient has a melanoma
or diabetes or PAD, do you not have a duty to
recognize and either treat or refer? Of course you
do.

Should litigation occur with a wrongful death
suit, you will be trusting support for your
decision regarding prophylaxis, diagnosis, need
for referral to a jury of non-health care
providers. Remember, the jury is held to a "more
likely than not" standard to find you guilty,
essentially slightly more than a coin flip.
"Experts" for each side will argue for and against
you.

For patient protection and for malpractice
protection, evaluate each patient individually.
Educate the patient or caretakers regarding the
signs and symptoms of DVT/PE when appropriate.
Document appropriately. Do not depend solely of
stratification of risk scales such as Caprini. For
example, the recent $1,000,000 verdict cited in PM
news included a prior diagnosis of gout as one of
the risk factors not considered by the defendant
podiatrist.

Also remember, as previously discussed, that many
thrombophilias predisposing to thromboembolic
disease are diagnosed only after the
thromboembolic event. Stratification and
assignment of risk with Caprini or other similar
scoring systems are helpful. The relevant
medical/podiatric literature is helpful. Published
clinical guidelines are helpful. However,
ultimately, patient safety would indicate that
each patient be evaluated based upon their
particular circumstances. It is probably better to
error on the side of safety in most circumstances.
Even under ideal circumstances, with reference to
thromboembolic disease, we can offer only
statistical not absolute protection.

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