By Lawrence M. Karam
Partner
Medical malpractice is more than a plot device in TV shows—it impacts real lives. But what exactly constitutes podiatric malpractice in New York, and how can both doctors and patients work to prevent it? Based on my 40+ years of experience in medical and podiatric malpractice cases on behalf of patients just like you, I have put together this post to test your podiatric knowledge with a quick true-or-false quiz.
The following “case” is a compilation of several cases and represents a realistic medical scenario. The solutions and takeaways here are a “discussion” based on my opinion as to the standard of care that podiatrists should follow. My opinions are based on decades of working with medical and podiatric expert witnesses.
Example Case
The “patient” is a 35-year-old avid runner. She recently bought new running shoes from a different manufacturer than her old running shoes and found that in the new shoes, her feet became very painful around her big toe joint while running. She went to a local podiatrist and told him that she has pain when running. However, she did not tell him that the pain started only when she started using her new running shoes. The podiatrist did not ask her questions about her running. The podiatrist examined her feet, took x-rays and told her that her pain was from a long-standing bunion deformity and that she needed surgery to get rid of the bunion if she wanted to be able to run pain-free. Assume that the examination and x-rays did in fact show that she had a bunion deformity in both feet.
The Quiz
- True or False: The patient should never have seen the podiatrist and should have changed back to her former running shoes.
- True or False: The patient should have told the podiatrist that the pain started when she switched to her new running shoes.
- True or False: The podiatrist’s diagnosis of a bunion causing the pain was wrong.
- True or False: The podiatrist was correct in recommending surgery but was wrong in telling the patient that with surgery, she would return to running pain-free.
Solutions and Takeaways
The patient should never have seen the podiatrist and should have changed back to her former running shoes.
Answer: True and False!
Changing back to the old shoes and not going to the podiatrist is what many of you would say and that would be correct. But getting professional advice would also be the correct thing to do. So both answers are correct! Getting professional advice would help identify why the new shoes started producing pain. The shoes may have been the wrong size or fit and that may have led to the advice of trying to go back to the prior manufacturer’s shoes. Or, padding, inserts or orthotics may have helped make the new shoes fit better.
The patient should have told the podiatrist that the pain started when she switched to her new running shoes.
Answer: True.
How and when the pain started is something that should have been discussed. The patient should have told the podiatrist the pain started only when she switched to new running shoes. However, since she told the podiatrist she was a runner, there is also an obligation on the podiatrist to ask questions such as, “Have you always had pain when running?” or “Did you change something in your running habits?” or “Did you always have pain in these running shoes?” In this case, there was no excuse for the podiatrist not to know the pain started only with the new running shoes. The patient fell short in not volunteering this information but the podiatrist also fell short in failing to ask the right questions. In my opinion, the greater burden falls on the podiatrist who is more knowledgeable, presumably, of the various causes of foot pain. (Additionally, the podiatrist should have examined the running shoes to see if they were worn in places where there should not be wear.)
The podiatrist’s diagnosis of a bunion causing the pain was wrong.
Answer: False.
This patient had a bunion deformity of long-standing duration, and before she changed to a new running shoe she did not have pain from the bunions. So there was something about the new running shoes which brought on the pain in the area of the big toe joint which I like to call the “bunion joint.” In this case, without knowing the pain started with new shoes, simply diagnosing the cause of the pain as being from the bunion deformity was not correct.
The podiatrist was correct in recommending surgery but was wrong in telling the patient that with surgery, she would return to running pain-free.
Answer: False and True.
The podiatrist was not correct in recommending surgery based on the fact that he was unaware of the impact of the new running shoes. But, now assume that recommending surgery was appropriate, the rest of the question is false—it was not correct to tell the patient she would be pain-free with surgery. There are no guarantees with surgery in general and certainly not with bunion surgery. The surgery—and there are many types of bunion surgery—is commonly performed and often with success in reducing or eliminating the pain from the bunion. But, the surgery may not reduce the pain, and at times, for reasons not in the control of the podiatrist, the pain can worsen. So telling the patient she will be pain-free was not the right thing to do. Proper “informed consent” means that the podiatrist has to inform the patient not only of the benefits—and they always tout the benefits—but also the risks and “downsides” to surgery, which they often fail to do.
Bonus Question
Assume the patient and podiatrist did discuss the fact that the pain only started with the new running shoes, but the patient decided that she wanted to have the bunions fixed so that she could wear stylish dress shoes with heels and do so without pain. After discussing the benefits and risks of bunion surgery the patient decided to have the surgery. During surgery, instead of shifting a bone into a proper and improved position, the podiatrist shifted it into the wrong position leaving the patient with worse pain than what she had before surgery.
Is it true or false that the patient has no recourse because she agreed to the surgery knowing the benefits and risks?
The correct answer is false. The risks of surgery, which any medical provider should disclose, do NOT include the risk of a mistake or malpractice. The risks one accepts are only those which can occur without fault of the podiatrist.
Patients always have recourse to sue the podiatrist if a mistake was made so long as it can be proved that what happened was a mistake or as we are required to prove in court, a “deviation from the standard of care.”
In podiatry cases, the proof has to come from a podiatric expert witness who, after reviewing the case, the records, and testimony, can say with reasonable certainty that in her opinion the bad result was due to a mistake or something below the standard of care.
Often, additional proof is found in the records of second-opinion podiatrists. Though they would probably not write that the bone was moved into the “wrong” position, they may say that the bone was “mal-aligned” or use similar terminology. When we see this, we know the case of malpractice is strengthened because someone other than an expert witness confirms that the bone was in the wrong position.
Navigating Podiatry Malpractice in New York
While this scenario is an example of medical malpractice, real-life cases are often more complex and nuanced. If you suspect you’ve been a victim of medical negligence, don’t delay contacting an experienced malpractice attorney. There is a strict time limit in New York for filing a malpractice lawsuit. I represent individuals throughout the New York City area who suffered podiatric malpractice. Contact The Law Firm of Lawrence M. Karam, P.C. today.