03/26/2026    Allen M. Jacobs, DPM

Why does an insurance company require high limits of liability for providers who are being credentialed? (Joseph Borreggine, DPM)

?The issue of a higher required malpractice
coverage for some providing foot health services
in extended or long-term care facilities is an
interesting one.

The geriatric patient is the most rapidly growing
percentage of the population of the United States.
The plaintiffs bar will continue to migrate to
this population as an increasingly available new
feeding ground for litigation against health care
facilities and providers caring for the aged.
Falls, vascular disease, ulcerations, diabetes,
are but a few of the conditions seen in the older
patient. The natural history of such disorders not
infrequently includes a less than desired end
result even with optimal care. Plaintiff's
attorneys know that raising the “shoulda, coulda,
woulda” hindsight bias, suggesting that more
vigilant care would have altered the essential
reality of life nature,and death, may result in
financial reward.

There are occasions in which a healthcare provider
may however place themselves in a position of
increased malpractice exposure. For example,
qualification of a patient for so called “at risk”
foot care using class findings. When you do so,
you are saying “this patient has such advanced
arterial disease that cutting their own toenails
could result in an injury with severely poor
outcome, therefore a health care provider should
be paid for this service”.

Fair enough. However, in any aging population some
will progress to complications of PAD including
ulceration, infection, gangrene, amputation, pain
and suffering. I have reviewed such cases. The
question raised by the patient or family is why
did you recognize the PAD and do nothing about it?
The patients chart is replete with statements such
as “ no palpable pulse(s), loss of hair growth,
decreased temperature” and so on. Would an earlier
referral to a specialist caring for vascular
disease have altered the natural and inevitable
history of the disease, preventing the pain,
suffering, amputation, or death of the patient?
You had the opportunity to do so. You chart
advanced disease findings. Yet you stood by and
did nothing. These are the arguments the plaintiff
lawyers will bring forth. They will argue that
your duty to the patient was more than nail or
skin care. It included the recognition of the
severe PAD. You breeched that duty by a failure to
refer. The failure to refer resulted in damages.

How do you defend these challenges when the chart
is filled with class findings which you document
multiple times year after year? Do you state that
your billings to Medicare were fraudulent and
misrepresented the true status of the patient in
order to be paid? Do you state you are just
stupid? Do you rely on a jury to determine whether
the patient had PAD significant enough to warrant
qualification for “at risk” foot care but “not bad
enough” for referral?

Remember, unlike a criminal, who must be convicted
on evidence “beyond a reasonable doubt”, the
standard against you will be “more likely than
not”. Meaning essentially maybe an earlier
referral would have altered the natural history of
life and death. More likely than not is a coin
flip. Just more than 50/50. 50.0000000000001 vs.
49.999999999999. That is the reality of more
likely than not.

That is just toenails, let alone more complex
pathology such as ulcer care. There are now over
65,000 plaintiff law firms. They flood the media
with advertising. “ If we don’t win, you don’t
pay” incentivizes such lawsuits. We live in an I’m
the victim mentality in which personal
responsibility is abrogated.

These may be some of the reasons increasing
malpractice coverage for long term care patients
is being required. It is unfortunate that
plaintiff lawyers are so busy practicing law that
they do not have the time to practice medicine.
After all, as my old professor Dr. James Ganley
pointed out to us as students, it is in the
offices of the plaintiffs lawyers where perfect
medicine is practiced.

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