Podiatrist Goes Overboard on Bunion Surgery

The following excerpt from a Notice of Intent to File Claim, or more commonly called, “Notice of Intent to Sue,” is a recent case that the litigators at Erlich, Rosen, Bartnick & Cook, P.C., have begun on behalf of one of our clients. If you wish to discuss a medical malpractice claim please contact ERBC at either www.ERBClaw.com or 1-800-595-0506 for a free consultation.

Factual Basis For Claim

Plaintiff underwent bunion correction surgery on the first metatarsal of her right foot in 2003 and 2004 by an orthopedic surgeon. Plaintiff was not satisfied with the results of these two surgeries and presented to Defendant Podiatrist for a second opinion in late 2005. Plaintiff was a clinic patient of the surgical hospital where Defendant Podiatrist and his residents were under employment contracts with the hospital to provide services to patients such as the Plaintiff. Defendant, along with several of his residents, examined Plaintiff and reviewed her x-ray films.

After much discussion between Defendant Podiatrist and his resident physicians on how to handle the right foot, Defendant decided upon doing a Lapidus procedure on her first metatarsal as well as Weil osteotomies on her second and third metatarsals and the use of an external fixator mini rail system.

Defendant assured Plaintiff that the surgery would not be a big deal and that she would be back to work in a matter of six weeks. Based upon Defendant’s assurances of the efficacy of the procedure and the relatively short recovery time, Plaintiff agreed to undergo the procedure. The surgery itself took place on March 1, 2006. Defendant was the attending physician responsible for all surgical decisions and also responsible for the actions of his residents, who also participated in the procedure.

On Plaintiff’s right foot, Defendant Podiatrist and his residents performed a removal of exostosis and a Lapidus procedure with callus distraction and external fixation of the first metatarsal and Wyle osteotomy of the second and third metatarsal. They also performed removal of exostosis and arthroplasty of the second digit on her left foot. The decision to perform surgery on both feet at the same time resulted in Plaintiff not having an available foot to bear weight upon during the post-recovery process. Furthermore, Plaintiff was overweight at this time which is another factor that Defendant should have considered in choosing to perform such a complicated bi-lateral procedure.

The Lapidus procedure performed by Defendant and his residents was done by cutting the first metatarsal directly through the mid-shaft rather than near the joint. Ostensibly this was done because her prior surgeries prevented a closer osteotomy to the joint, a fact that Defendant should have been well aware of prior to surgery based upon radiological review. The mid-shaft of claimant’s first metatarsal was completely severed and repositioned. A single screw was placed internally along with K wires. Externally, a fixater device was placed with six screws ostensibly holding the pieces of bone together in an anatomically correct fashion.

Plaintiff was instructed to start turning the external fixator device 1 mm per day at post operative day ten in order to separate the metatarsal bones. Within two weeks of the surgery, Plaintiff had developed severe and irretractable pain at the surgery site on her right foot. She followed her discharge and home health instructions to the letter and sought follow up treatment whenever she felt it was necessary. She was given several pain block injections that offered minimal relief. She was placed on Lovenox for a few weeks following the surgery as a clot preventer. The medical records indicate that Defendant and his residents regarded Plaintiff’s pain complaints and visits to the emergency department and the clinic on several occasions as being psychological in nature and instructed her that, “she needs to deal with her pain issues better.”

Serial x-rays taken of claimant’s right foot clearly showed that the Lapidus procedure was evolving into a non-union situation. There was consistently a 3-4 mm gap at the osteotomy site in the mid-shaft of her first metatarsal that would not heal. The six week mark, when she should have been fully recovered, came and went and the external fixation device remained in place. At 15 weeks, with the fixator still in place and no signs of healing occurring Plaintiff presented to Defendant with increased swelling in her right calf area. It was further noted that she had developed a “mild” hallux varus deformity of her right great toe. Rather than recognize the fact that the original surgery had produced a non-union and that surgery with the placement of bone grafting to correct the non-union within the three month window of opportunity was necessary, Defendant proclaimed that he “did not know how to spell bone graft,” and instructed her to return in one week for x-rays to make a decision on her post operative course.

Over the next several days, the swelling in her right leg intensified and Plaintiff went to an area hospital where she was diagnosed with a deep vein thrombosis in her right lower extremity which was missed by Defendant and his residents. She was hospitalized for several days and given Lovenox treatment to dissolve the clot. As a result of the DVT, Plaintiff has suffered permanent damage to her leg valves which causes her permanent swelling and discomfort due to blood pooling in her veins as well as a need for lifelong Coumadin therapy.

Plaintiff continued to follow up with Defendant and his residents on a regular basis for the next several months where serial x-rays continued to show a non-union and she continued to wear the external fixation device. At no time did Defendant recommend surgical correction of the ongoing non-union and in fact, he chastised his residents for suggesting a bone graft to heal her non-union. Over this period of time, her hallux varus condition worsened and she finally sought a second opinion with an orthopedic specialist. The orthopod examined Plaintiff on August 24, 2006 where he noted a hallux varus of her right foot and recommended surgical removal of the external fixater that had been in place for nearly six months.

The orthopedic surgeon performed surgery on September 18, 2006 to remove the external fixation device and has been following Ms. Sprague since that time. As of December 22, 2006, the osteotomy site had finally healed, more than nine months after Defendant’s original surgery. Her new orthopedic surgeon has also diagnosed Plaintiff with mid foot arthrosis bilaterally, tight heal cords bilaterally, and “Iatrogenic hallux varus and hallux rigidus on the right.” Massive reconstruction surgery was performed by this doctor on Plaintiff’s right foot in August of 2009.

The reason for the delay was that following the removal of the external fixation device Plaintiff had been left with such a poor outcome that it affected how she walked and her weight bearing. She quickly developed right knee problems and underwent a uni-compartmental right knee replacement procedure in November of 2007. This procedure did not work and she went to the Cleveland Clinic where a total knee stabilizer system was put in place in June of 2008. She was not able to address the foot repair surgery until after her knee replacement surgeries were healed. All of these surgeries were caused by the negligence of the Defendant in performing the bunionectomy procedure in March of 2006.