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$210,000 Jury Verdict - A case study in podiatric malpractice

$210,000 Jury Verdict - A case study in podiatric malpractice

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KF is a parent.  A wife.  An employee.  A nice woman.

She'd had some issues with her feet in the past.  Bunions, occasional discomfort.  Nothing major. 

She was referred to a local podiatrist.  He seemed nice.  He told her she had a hallux valgus – not that she knew what that was.  It meant that she had a bunion.  He told her that he would just “shave some off,” and “clean things up.”  She'd be up and running (or, in her case, playing in the local co-ed softball league) again in no time.

Except that's not what happened.

Instead the doctor “shaved” too much bone, which caused KF to develop a hallux varus – picture your toe floating out away from your foot. 

But her doctor didn't notice it; or at least he didn't pay attention to it.  After the surgery she went back, again and again, complaining that it just didn't look right.  She took pictures.  He continued to tell her that it was “healing well.”  He did not take any post-surgical precautions, such as strapping, taping or padding.  Her foot healed the wrong way.

Eventually KF went for a second opinion.  She immediately learned that she had a problem.  Her hallux varus was causing her pain and difficulty walking.  She needed to have a surgical fusion and bone repair.  The recovery would not be quick. 

KF had the surgery, and the recovery was not quick but she did recovery.  Except that she continued to walk with a slight limp in her step – her gait was off.  And this caused her discomfort, back pain.  She had to see a chiropractor for the first time in her life. 

The pain did not ruin her life, but it made things more difficult.  And that was a problem.  A problem that could have been avoided had her podiatrist handled her case properly. 

KF came to us because she had been told in no uncertain terms that something wasn't right.  But in New York, feeling that something is not right does not give you the ability to pursue a medical malpractice lawsuit.  That can only be accomplished by having an expert physician review the case.

Step One - The Case Review

Our first step was to obtain a certified copy of the entire record of KF's podiatrist – including copies of his films.  This is crucial – the certified copy is an attestation by the doctor that the record being provided is an exact copy of the original chart.  This can become critically important if later, when the original chart is produced and reviewed, something is missing or was not disclosed. 

Once we received the record we performed first our own internal review, which confirmed what we believed – that the doctor was not paying attention to KF's complaints.  Now, one thing we know from experience is that the medical records almost never accurately reflect the concerns that the patient conveys to the doctor – most doctors hear so many patient concerns that they simply become desensitized to them (this does not make the failure to accurately record these concerns acceptable).  And KF's case was no different – the records did not reflect the complaints that she actually made during visits.

Fortunately for KF she had kept photos of the condition of her foot during her post-operative care.  These became critical later on.

Despite the poor record keeping, however, the physician that we retained to review the records and films was unequivocal – the doctor had deviated from accepted medical standards of care in his treatment of KF, both during the operation (by removing too much bone) and post-operatively (by ignoring her complaints and not taking proactive measures to attempt to repair the hallux varus).  We then had what we needed to file the malpractice lawsuit.

Step Two - The Lawsuit and Depositions

As often happens, however, KF's doctor did not agree that he had made mistakes in her care.  He thought his care was perfect. 

We took his deposition, during which despite acknowledging her complaints and his failures, he stood by his position that he did not make any mistakes. 

His lawyer took KF's deposition, during which he asked her many questions about the complaints she had made post-operatively, the photographs she had taken and subsequent care.  We believed that she was a good witness – very credible.  We believed that after the depositions it would be appropriate for the doctor to settle the case; to acknowledge, without saying so, that he made some mistakes in her care.  Not just judgment errors; but actual mistakes. 

He did not agree.  We made a reasonable settlement demand, less than $200,000.  He refused to make any offer in response. 

Step Three - The Trial

So, we prepared the case for trial.  We prepared with our expert witness, a brilliant podiatric surgeon, and flew him in for the trial.  We coordinated with KF's chiropractor, and had him come in to the trial as well.

During jury selection, we asked the potential jurors about their experiences with doctors, about whether they thought that, on some occasions, doctors made mistakes.  About whether they could give KF a fair shake, and make a finding against the doctor if we proved that he made mistakes.  They assured us that they could.  We were satisfied. 

The trial went on for nearly a week.  We presented KF's case, going through each of her visits with her, discussing the complaints that she made and the doctor's responses.  We then called her chiropractor as a witness, and asked him about her gait and what she could expect moving forward.  We introduced her medical records into evidence.  Then we called our expert to the stand.

Our expert went through the anatomy with the jury.  He taught them about the foot, and about what a hallux varus was, how it developed, and how it could be treated.  In the end, he told the jury that KF's doctor made some mistakes – he showed them the x-rays and showed where the mistakes had occurred. 

For his part KF's doctor put up a good defense.  He had his own expert come in and say that he had not done anything wrong.  We cross-examined the expert, and pointed out where we thought the mistakes had happened.  We got the expert to admit that maybe the care was not quite as good as the jury had been told.

When we finished with the testimony the lawyer for KF's doctor got up first and told the jury about why the doctor did not make any mistakes, about how what happened to KF was a known risk and could have happened to anyone. 

We then told the jury our story.  About how KF tried to be her own advocate, about how she tried to tell the doctor about the problems that she was having.  About how he didn't listen because he believed that she was fine.  We talked to the jury about what the proof – the photos, the x-rays, the records – really showed.  That KF's doctor made mistakes in performing a relatively simple bunionectomy; mistakes that were not known and ordinary risks; mistakes that should not have happened.

Step Four - The Verdict

The jury deliberated for three + hours.  In the end, they came back and said that they had determined that the doctor had made mistakes; that he had committed malpractice and that his malpractice had caused KF to be injured.  They awarded KF $210,000 in damages.  More than she had asked the doctor's insurance company to pay before the trial. 

Money did not solve KF's foot problems.  It did not make it easier for her to run, or play with her son, or take a long walk without pain.  It did, however, prove to her that sometimes people are held accountable for their mistakes.  And it gave her some assurance that maybe the next time someone complains to this doctor about a problem he will stop what he's doing, pay attention, and fix it there.  And maybe other doctors who read or heard about the jury verdict will do the same, and maybe someone else will be spared the problems that KF had because of her actions. 

If you have questions about podiatric malpractice contact us today.

Practice area(s): Medical Malpractice

Court: Rensselaer County Supreme Court

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.

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