EMAIL TO A FRIEND COMMENT

 

Podiatrist Performed Surgery Improperly on Woman’s Foot


A woman suffered from pain in her right heel. She saw a podiatrist who took x-rays of her feet and informed her she had a bunion, hammer toes, and a problem with her ankle. Specifically, the podiatrist diagnosed her with (1) hallux abductovalgus deformity (bunion deformity), (2) talipes valgus, (3) plantar fasciitis, and (4) hammer toe deformities in the fourth and fifth toes. The podiatrist told her surgery was the only way to correct all these problems and it would be better to take care of everything at once. The podiatrist did not discuss other forms of treatment.

 

A month later, the woman went to the podiatrist for a preoperative visit. The podiatrist’s nurse came in to explain what the podiatrist would do during the surgery. The woman signed documents in multiple places but was not given an opportunity to review any of the papers. One of the documents she signed was a consent form, which contained non-surgical treatment alternatives.

 

The woman underwent surgery. Specifically, the podiatrist performed a (1) bunionectomy with a screw fixation, (2) subtalar joint arthroereisis with a talar fit implant, (3) plantarfascia release, and (4) hammer toe deformity correction with arthroplasty on the fourth and fifth toes with an interphlex stabilization toe rod. Upon discharge, she was not to put any weight on her foot. At the first follow-up visit five days after the surgery, the woman voiced her concern that something did not feel right and her big toe was in excruciating pain. The podiatrist took another x-ray and assured her that she was healing properly.

 

Twelve days after the surgery, the woman saw the podiatrist and again complained of pain in her big toe and throbbing pain in her ankle. At this point, the woman wore a weight-bearing boot. The podiatrist took the staples out of the woman’s foot. While taking the staples out, he took a cell phone call, came back in, did not wash his hands, and continued to remove staples. The podiatrist told her everything looked great and to continue taking pain medication if needed.

 

Twenty-six days after the surgery, the podiatrist took another x-ray, told her that her foot was “pretty much healed,” and fully released her to return to work. The podiatrist had no response when she asked why she still had so much pain in her big toe. The woman returned to her job, but she struggled to get through every day and would have to leave her shift early. She had to take her shoe off due to the swelling and had to sit down at a job where she was supposed to be on her feet.

 

Four months later she went to the emergency room (ER) because of the pain and swelling in her foot. Following x-rays and an examination, the ER physicians referred her to a specialist. That same month, she went to see the specialist, who viewed her x-rays, examined her foot, and sent her for additional imaging studies the next day. The specialist instructed the woman not to return to work and referred her to another specialist.

 

The second specialist instructed the woman to remain off work and scheduled surgery to repair her damaged foot. Five months after the initial surgery, the woman underwent corrective surgery.

 

Two months after the corrective surgery the woman’s big toe showed signs of infection. She was diagnosed with methicillin resistant staphylococcus aureus (MRSA), a bacterial infection resistant to many antibiotics. She was placed on an extensive course of antibiotics to treat the MRSA. The second specialist performed a third surgery to remove all of the “hardware” from her foot.

 

The woman sued the podiatrist and his practice group for medical malpractice. The complaint alleged that the podiatrist deviated from the standard of care. The woman’s experts testified that the podiatrist had performed the osteotomy incorrectly so that her metatarsal bone had not healed properly. They also testified that the podiatrist had performed the subtalar implant incorrectly so that the woman’s heel would be misaligned.

 

During the woman’s expert discovery deposition, he explained that he had transferred from one podiatry school to another. He claimed he transferred for family reasons. A member of the faculty from the first podiatry school was also deposed. During that deposition, the faculty member testified that the woman’s expert was caught cheating and the academic review committee had recommended he be expelled. That recommendation went to the executive committee. The faculty member knew the woman’s expert had transferred but did not know the actions the executive committee took.

 

Prior to trial, the woman filed a motion in limine to exclude evidence of the cheating scandal, arguing it would impeach her expert on a collateral matter and asserting the specific act of cheating was inadmissible. The podiatrist objected, arguing the impeachable event was not the act of cheating, but the fact that the expert had lied about why he transferred while under oath at his deposition. The Circuit Court of Coles County found the cheating evidence irrelevant and too remote (and did not amount to a crime) to be admitted as a crime involving dishonesty. At trial, the woman’s expert asserted his fifth-amendment privilege in response to questions about why he left the first school, whether he encountered any problems there, and whether there was an academic finding he had cheated on exams.

 

At trial, the woman’s expert testified that the screw inserted across the osteotomy and into the metatarsal head was too long. The podiatrist’s counsel objected, arguing it was a new and undisclosed opinion. The trial court overruled the objection, giving the woman’s counsel leeway with her expert because his testimony was not so inconsistent or different from the opinions that had been disclosed to amount to a violation requiring a mistrial.

 

The trial court, over the podiatrist’s objection, gave a nonpattern instruction which read, “It is not a defense to plaintiff’s claims of professional negligence against the defendants that the defendants obtained informed consent from the plaintiff to perform the surgery on her right foot.” The trial court instructed the jury, “If a defendant negligently causes injury to the plaintiff, then the defendant is liable not only for the plaintiff’s damages resulting from that injury, but is also liable for any damages sustained by the plaintiff arising from the efforts of health care providers to treat the injury caused by the defendant.” Third, the trial court further gave instructions regarding future damages. One instruction provided for damages for (1) loss of normal life experienced and reasonably certain to be experienced in the future, (2) pain and suffering experienced and reasonably certain to be experienced in the future, (3) reasonable expenses for necessary medical care, and (4) the value of earnings lost. The other instruction, verdict form A, provided damages for (1) loss of normal life experienced, (2) loss of normal life reasonably certain to be experienced in the future, (3) the pain and suffering experienced, (4) the pain and suffering reasonably certain to be experienced in the future, (5) the reasonable expense of necessary medical care, and (6) the value of earnings lost.

 

After the trial, the jury found in favor of the woman and awarded her $1,269,926.10 in damages. For loss of a normal life experienced, the jury awarded $150,000. For loss of a normal life reasonably certain to be experienced in the future, the jury awarded $600,000. For the pain and suffering experienced, the jury awarded $200,000. For the future pain and suffering, the jury awarded $250,000. The jury awarded $45,235.19 for medical expenses. Finally, the jury awarded $24,691 for the value of earnings lost.

 

The Fourth District Appellate Court of Illinois affirmed. The court held that the trial court did not err in limiting cross-examination of the woman’s expert witness regarding whether he cheated in podiatry school or lied about it during his deposition, the podiatrist and his practice group were not prejudiced by the introduction of the woman’s expert’s allegedly undisclosed opinion regarding the length of the screw, the trial court properly instructed the jury, and the verdict was not against the manifest weight of the evidence.

 

The trial court did not err in limiting cross-examination of the woman’s expert witness regarding whether he cheated in podiatry school or lied about it during his deposition. A witness may not be cross-examined on irrelevant or collateral matters. The trial court concluded the evidence of the alleged cheating scandal was irrelevant and collateral and would not be provided to the jury. The appeals court agreed reasoning that the alleged cheating incident and the fact that that expert may have lied about it during his deposition had nothing to do with his qualifications as an expert, his medical opinions, or any other material fact in the case.

 

The podiatrist and his practice group were not prejudiced by the introduction of the woman’s expert’s allegedly undisclosed opinion regarding the length of the screw. The woman’s expert’s reference to the length of the screw was made in passing as he described his undisputedly disclosed opinion regarding the improper placement of the screw. The mere mention of the length of the screw was not of such magnitude as to deprive the podiatrist and his practice group of a fair trial. The woman’s expert’s testimony primarily related to the threads of the screw in the osteotomy site and how that prevented a nonunion. The comment regarding the length of the screw was cumulative. The first specialist testified, without objection from defense counsel, that the screw appeared to be “a little bit long.” The court concluded that the podiatrist and his practice group failed to show this error deprived them of a fair trial and resulted in actual prejudice.

 

The trial court properly instructed the jury. The court concluded the trial court did not abuse its discretion in finding the nonpattern instruction regarding informed consent appropriate and supported by the evidence. The court reasoned that no pattern instruction applied to the instant case where the claim did not involve informed consent and where the podiatrist and his practice group did not raise informed consent as a defense, yet both parties raised the issue of the signed consent form. The instruction did not unduly emphasize any issue particularly in favor of the woman—if anything, it emphasized she was fully informed of the potential risks associated with the surgery, a fact which could have prejudiced her. The instruction regarding the podiatrist’s liability for damages arising from the efforts of other health care providers to treat the injury was necessary because the woman suffered further damage as a result of corrective surgery—namely, the MRSA infection she contracted. The instruction ensured the jury would not infer someone else acted negligently and, accordingly, fail to hold the podiatrist and his practice group liable for the infection or subsequent surgery. The instructions concerning future damages were not confusing even though one instruction included four categories of damages and another instruction included six categories of damages. As the trial court noted, verdict form A merely broke down the damages for loss of normal life and for pain and suffering already experienced and expected to be experienced in the future. The court held that these two instructions were consistent, clear, and unlikely to confuse the jury.

 

The verdict was not against the manifest weight of the evidence. Both sides presented expert testimony. Although there were differing expert opinions, conflicts in the evidence and disagreements among experts do not make a verdict against the manifest weight of the evidence. The jury weighed the conflicting evidence and determined which witnesses were more credible. Ultimately, the jury determined the witnesses supported the woman’s theory of the case and rendered its verdict accordingly. The woman’s testimony, coupled with the testimony from the various physicians regarding the complications in the surgery performed by the podiatrist and the corrective surgery, was sufficient to support the jury’s verdict.

 

The Fourth District Appellate Court of Illinois affirmed the trial court’s entry of judgment on a jury verdict in favor of the woman.

 

See: Doedtman v. Borreggine, 2016 WL 718300 (Ill.App. 4 Dist., February 23, 2016) (not designated for publication). 

 

 

REPRINTS & PERMISSIONS COMMENT