Litigation News

This is a scenario we often see with young and aggressive doctors. These doctors persuade and “sell” surgeries to their patients who do not really require that treatment. Very often this is seen with surgery for heel spurs and plantar fasciitis, where doctors essentially tell the patients it won’t hurt and you will be back walking and to work very soon. These doctors will then do an EPF or Endoscopic Plantar Fasciotomy and once the surgery is done, it can’t be undone. This surgery, while a good procedure if judicially performed, has been abused to the extent that websites have been developed to expose the enormity of the complications. In this case, an orthopedic surgeon in Atlanta was compelled to open up the entire bottom of this patient’s foot to attempt to locate the damaged nerves and tissues. The settlement achieved was a minimal victory to this patient who hoped to join the State Patrol.

This case presented a unique twist in its development. The client went to see a podiatrist for ankle pain and soreness. The doctor did x-rays and other preliminary tests. He never discussed the results of the tests with the patient who eventually had his leg amputated. The deposition of the doctor by a Footlaw.com attorney revealed that the x-rays which the doctor relied upon were of such poor quality that any diagnosis was impossible. The fact that Footlaw.com attorneys are also Board-certified podiatrists allowed the attorney to know what an x-ray should reveal and how the x-ray was improperly exposed. That line of questioning resulted in an immediate request for mediation from the doctors’ attorneys and the matter settled thereafter.

The podiatrist examined the patient and diagnosed a wart on several different office visits. The doctor continued to treat the malignant melanoma as if he was treating a wart. When the melanoma was eventually diagnosed immediately by a dermatologist, the client was forced to undergo numerous surgeries, skin grafts, and chemotherapy. She was at risk of never being able to give birth to a child because of the suppression medications necessary. After a prolonged mediation, the case was settled by all parties.

Confidential Settlement:

The podiatrist examined the patient following an emergency room referral. The podiatrist failed to diagnose an ankle fracture (broken ankle) despite the radiology report stating such was present. The podiatrist operated on the ankle 3 different times, each time failing to diagnose and repair the ankle fracture. This case was settled without filing a lawsuit due to the circumstances.

Confidential Settlement:

The podiatrist, while performing a bunionectomy surgery, fractured (broke) an adjacent bone. The podiatrist did not disclose this to the patient despite having x-rays which displayed the problem. Later medical records put the blame on the patient when the podiatrist said the patient fell and he then broke that bone. This was very transparent and self-serving and resulted in a Presuit settlement.

Confidential Settlement:

The podiatrist, after performing foot surgery, allowed her support staff to see the patient for post-operative office visits as well as her own examinations. The office personnel applied a much too constrictive post-operative bandage which compromised the circulation of the foot. Despite seeing the podiatrist several times thereafter, the circulation problem was never diagnosed until gangrene developed. The patient underwent further surgery by subsequent doctors including partial foot amputation.

$425,000.00 settlement:.

The podiatrist of a 58 year old diabetic woman failed to properly diagnose and timely treat an infected foot ulcer, which resulted in the amputation of her big toe and metatarsal bone. It was also proven that the podiatrist had changed his records to hide the mistake.

$85,000.00 settlement:

The podiatrist performed heel spur surgery without attempting conservative care resulting in nerve damage. This case was settled without filing a lawsuit due to the circumstances.

$300,000.00 settlement:

The podiatrist failed to appropriately treat this young woman with a draining foot ulcer for 9 months. This resulted in a bone infection and the leg being amputated. This young victim, with 2 small children at home to care for, was blamed by the doctor for not obeying his orders but at the doctor’s deposition, he was shown to be completely uneducated as to the underlying Spina Bifida.

No recovery and expenses of the case lost and paid by attorneys:

In this case, a diabetic woman was treated by a podiatrist for 9 consecutive months and never performed an x-ray, culture, or another diagnostic tests. An MRI and bone scan were both reported as consistent with osteomyelitis. The client required a partial amputation and the surgeon stated in his deposition that the bone was infected and needed to be amputated. The case was to be tried in February 2005 but at the last minute, a lost pathologist’s report was found which was reported as no osteomyelitis. The pathologist was asked about this and advised that no one told him to look for a bone infection. At that late date, and with the bone specimen discarded, the case had to be dismissed to protect the client from being sanctioned.

$100,000.00 policy limit recovery:

In this case, a podiatrist performed surgery upon the elderly client who had severe peripheral vascular disease. Gangrene developed within 7 days and the client’s leg was amputated. This podiatrist only maintained insurance coverage in the amount of $100,000.00, and this amount was tendered by the doctor’s insurer. Estimates for rebuilding the client’s home to be handicapped accessible were $50,000.00, and Medicare claimed a subrogation lien of approximately $30,000.00, leaving the client a victim twice over.

$115,000.00 settlement without a lawsuit being filed:

In this case, a young woman tore her Achilles tendon which the podiatrist allegedly repaired. When the tendon ruptured a second time, the patient was brought into the operating room at which time the hospital refused to allow the podiatrist to perform the surgery in that he did not have privileges to perform that surgery. Eventually an orthopedic surgeon repaired the tendon and the client is doing well.

$500,000.00 settlement:

In this case, an emergency room physician failed to diagnose necrotizing fasciitis of the client’s leg and discharged her with a “groin strain.” Several days later, she was in the hospital for the start of 60 days of near death treatment in intensive care, about 12 surgeries, hyperbaric oxygen, and physical therapy. She is now disabled and has lost partial vision in 1 eye due to the infection and coma. With only $1 million dollars of insurance coverage, the client decided not to gamble with a trial and take the settlement offer rather than attempt to seek an excess verdict which was likely.

$425,000.00 settlement:

The podiatrist of a 58 year old woman with longstanding diabetes failed to properly diagnose and timely treat an infected foot ulcer, which resulted in the amputation of her big toe and metatarsal bone. It was also proven that the podiatrist had changed his records to hide the malpractice.

$475,000.00 settlement

The podiatrist of a 54 year old women with brittle diabetes and extensive peripheral vascular disease failed to adequately address the blood flow through the leg before applying a restrictive cast. It was demonstrated that the podiatrist failed to properly examine and obtain the vascular disease in the patients leg before the application of a cast that chocked off blood flow to the foot leading to gangrene. Despite heroic measures by her subsequent vascular surgeon and podiatrist, a below knee amputation was performed. The matter settled after a jury was selected and sworn in.

$175,000.00 settlement:

The podiatrists of a 43 year old female failed to appropriately perform and manage bunion surgery resulting in fusion of the first metatarsal-phalangeal joint. She will ultimately require a salvage procedure to restore the joint to a functional level. Additionally, plaintiff was prepared to prove that the informed consent forms for the procedure were forged. The suit was resolved the day of jury selection.

This is not a truly rare incident and we see clients with these complaints routinely. What made this case one that we did not accept was that the doctor’s medical records were pristine as was his informed consent for the surgery. Prior to the surgery itself, the doctor explained potential complications and included the fact that the bunion might actually return. With such informed consent signed by the client, we opted not to proceed against the doctor.

During the 20 plus years lawyers have been involved with Footlaw.com, we have investigated hundreds of potential cases yet accepted only a minority. The reasons are simple: most cases involve poor results and that alone is insufficient to maintain a medical malpractice case. In addition, medical malpractice is a difficult field of law to practice and clients often have the expectation that their case will provide a lottery type windfall. When a client sees only dollar signs, is unable to appreciate the years it will generally take a case to conclude, and ultimately says that there is no way their case can lose, those are the warning signs an experienced attorney sees.

This potential client had an extremely poor surgical result following bunionectomy surgeries and was seen by several subsequent doctors. These doctors told him that her foot required total joint replacements due to complications from the initial surgery. When our retained experts reviewed the medical records and x-rays, it was obvious that the patient did have severe complications but none of the experts could tie in the complications suffered by the client to the surgeries performed by the initial doctor. Therefore causation, or the required need to associate the alleged negligence to the resulting damages could not be proven.

This potential client complained of weak toes and limited motion following hammertoe repair surgery. The subsequent treating doctors advised that the surgeries should never have been performed. When our retained experts reviewed the medical records and x-rays, the operative report displayed a medical basis for the surgeries and the x-rays revealed the procedures were properly performed. Swollen or sausage toes are an extremely common and known complication of hammertoe surgery and this was disclosed in the surgical consent form. Under these circumstances, the experts could not find liability as to the surgeon, that is, they could not conclude that there was a breach in the standard of care. Complications from surgery do not mean the doctor wass negligent under specific case related circumstances.

This potential client complained of several skin lesions to the podiatrist for many years. The doctor treated this as a fungal infection and as dry skin. On several occasions antibiotics were prescribed. The patient’s complaints would come and go over time so she stopped seeing this podiatrist. Approximately five years later, the patient was seen by a new podiatrist who examined a recurrent lesion (a highly disputed issue) and immediately biopsied the lesion with a finding of sarcoma. Despite this, and due to the allegations that the biopsied lesion was a different lesion than originally seen by the first podiatrist, the matter was time barred and no case was pursued.

This potential client complained of prolonged symptoms in her feet following bunion surgeries with a total joint implant. There was no doubt that the patient had post-operative complaints but the matter was whether those complaints were the result of physician negligence. Doctors seen following the surgeries “suggested” that the symptoms were caused by the implants themselves and not the surgeries performed. Despite the above, and the key to a successful litigation, is that we could not conclude that there was a negligent nexus between the client’s complaints and the care, treatment, and surgery rendered by the doctor. In other words, despite seeing the outcome, we could not legally and medically trace it back to his negligence.

There has apparently been an increase in the number of foot and leg amputations resulting from cold therapy after surgery.

Ice, when appropriately used, after surgery and injuries remains the standard of care. There have always been instances of patients failing to obey instructions and developing frostbite with improper ice use.

Recently, machines are being prescribed for cold therapy after surgery, replacing traditional ice therapy. Reportedly, such machines are causing frostbite and circulation problems which result in amputation.

If you or a loved one has suffered with a MAJOR complication from mechanical cold therapy after foot surgery, the attorneys listed on this web site will be happy to review your medical records and let you know whether they can assist you.

The new technique of Endoscopic Plantar Fasciotomy has been a significant advancement in the treatment of heel pain syndrome. Many patients have had successful results with this new surgical procedure. However, this technique has exhibited the potential for severe post-operative complications.

Some of those complications include:

• The Cuboid Syndrome, which is pain on the outside aspect of the foot.
• Nerve entrapment at the incision site, causing severe and unremitting pain in varied apects of the heel and feet.
• Severe arch discomfort.
• Post-traumatic nerve syndrome with sharp burning pains within the foot.

The developers of this technique have stated that 70% of heel pain will resolve with conservative treatments and will not require this surgery. The development of a complication does not, in and of itself, constitute medical negligence or malpractice.

Some complications can develop, however, due to failure to properly diagnose the patient’s condition pre-operatively, performing an inappropriate surgical procedure, the failure to attempt conservative treatment (injection therapy, strapping, orthotics), performance of this surgery in a negligent manner, and/or with aggressive overusage of this procedure. In some cases such complications might be the result of medical negligence.

Although this surgical procedure has helped many patients, there are several known cases where patients have suffered disabling complications following this specific surgery.

Reflex sympathetic dystrophy is a severe and debilitating condition that occurs when the nerves in the leg “go haywire.” The syndrome is at times known by different names, including Complex Regional Pain Syndrome.

The condition can develop following any small or insignificant traumatic injury such as a slip and fall. Of course other types of foot, ankle, or leg trauma or surgery can ignite this complication. The exact cause is still unknown.

Early and aggressive treatment (usually before the three-month period) can result in complete remission of the symptoms. However, if the diagnosis is not promptly made (i.e., within three months), or if it is not treated in a timely manner, then the reflex sympathetic dystrophy can become severe and debilitating to such a degree that stage III disease can evolve into permanent disability.

It is not medical negligence to develop Reflex Sympathetic Dystrophy following injury, surgery, or other medical treatment. However, failure to timely diagnosis RSDS (within the three month period), failure to refer to a Neurologist or a Pain Clinic, or failure to properly treat the condition may in certain instances constitute medical negligence.

WARNING: There have been cases reported where some practitioners have used the diagnosis of RSDS solely for the ease of diagnosis and for reimbursement purposes, when the patient did not, in fact, have RSDS. Such action may in certain circumstances constitute medical negligence or even medical fraud.

General Commentary

ESWT is an emerging new therapy for the treatment of chronic heel pain. Although the treatment has undergone clinical trials and although there have been no significant complications from the overuse of this new therapy, time will tell how effective this treatment is in a larger study of patients.

When Endoscopic Plantar Fasciotomy (EPF) was first introduced in the early 1990’s, everyone thought that it would be the final “cure” for heel pain. Unfortunately, the procedure has been apparently overutilized and many people suffered severe and debilitating complications from the procedure. Understand that many people where also helped by the procedure, but the over-enthusiasm in performing this surgical procedure resulted in surgery being performed too quickly, without conservative care, and in unsuitable candidates with resultant complications.

Likewise, there is likely to be a large increase in the use of ESWT to treat heel pain. Time will tell whether this utilization will result in significant complications in patients who, retrospectively, where poor candidates.

Indications

Generally, ESWT is only indicated in patients with chronic heel pain who have not responded to other treatments.
The heel pain should have been present for over six months before ESWT treatment.

The heel pain must be directly under or to the inside portion of the heel. ESWT is not indicated for arch pain – even if the arch pain is caused by plantar fasciitis.

Prior conservative treatment should have consisted of a variety of: physical therapy, stretching, night splints, orthotics, anti-inflammatory medication, cortisone injections, or even previous surgery (EPF or conventional heel surgery). CONSERVATIVE THERAPY IS ESSENTIAL BEFORE ANY SURGERY FOR HEEL PAIN IS CONSIDERED.

ESWT is indicated in heel pain caused by plantar fasciitis only. It is not indicated in heel pain resulting from other pathologies. A complete medical evaluation including laboratory blood work may be indicated to confirm a diagnosis.

Warnings

ESWT should be used with care in patients with cardiac pacemakers.

ESWT should be used with care in patients on immunosuppressive agents or cortisone therapy or patients on medications that prolong bleeding time (e.g., coumadin, or even low-dose aspirin).

ESWT can cause damage to major nerves or blood vessels if the ESWT treatment unit is placed directly over those structures.

We are interested in hearing from patients who have undergone ESWT treatment and who have had major complications. Please use our contact page to advise us of such complications, so that we may post the same on this page. THANK YOU.

A neuroma is pinched nerve, nerve tumor, or swollen nerve. These are some common terms for a rather painful condition. A neuroma is usually situated between the third and fourth toes. It can be characterized by a sharp, lancinating type pain, usually when the patient is wearing shoes. The patient feels that they may need to remove their shoe and rub their foot for relief. The reason for this patient activity is that the nerve between the toes is pinched by the constricting shoes. When the pain becomes more frequent and lasts over a longer period of time, the nerve becomes swollen and/or enlarged. THIS IS NOT A TUMOR OR A CANCEROUS GROWTH AS IS OFTEN TOLD TO PATIENTS.

Conservative treatment includes oral anti-inflammatory medication, cortisone injections, physical therapy, padding, shoe modifications, and orthotics.

Recently doctors have begun “sclerosing” treatments. These treatments use a concentrated solution of a chemical (alcohol) to burn and kill the nerve. If performed improperly, severe tissue damage, wounds, and pain may result.

Surgical treatment cuts the nerve and removes the enlarged portion of the nerve. Although this procedure has in the past been considered straightforward and with minimal complication risk, evidence is developing that this surgery is a high risk surgery for the development of Reflex Sympathetic Dystrophy. At least one study indicates that of all of the people who develop Reflex Sympathetic Dystrophy following foot surgery, thirty percent (30%) had undergone neuroma excision.

If you or a loved one has suffered with a MAJOR complication from the use of sclerosing agents or neuroma surgery, the attorneys listed on this web site will be happy to review your medical records and let you know whether they can assist you.

In recent years many people have used oral anti-fungal medications in an attempt to improve or eradicate fungus toenails and fungus fingernails. With the increased usage of these medications have come increased reports of complications.

Oral anti-fungal medications are associated with potentially fatal complications, including liver failure and heart failure. Approximately 22 deaths have been reported from liver failure associated with these medications and approximately 13 deaths have been reported from heart failure associated with these medications.

One should ask whether the risk of death justifies the use of these medications just to obtain cosmetically pretty nails.

Having a complication from the use of these medications is not, in and of itself, a cause of medical malpractice. But, medical malpractice may be present with the misuse of these drugs, including:

• Failure to do appropriate testing before starting the oral anti-fungal therapy to determine the presence of fungus in the nails (other conditions beside fungus infections can cause thick nails).
• Prescribing oral anti-fungal medications for patients with a pre-existing history of liver or heart damage and/or disease.
• Prescribing oral anti-fungal medications for patients taking other medications that stress the liver, including some cholesterol lowering medications and some non-steroidal anti-inflammatory drugs (NSAID). Many of these NSAID are available as over the counter medications.
• Failure to prescribe the medications in the proper dosage.
• Failure to perform appropriate blood tests during the treatment period to monitor the function of the liver and to monitor the patient’s blood count.

If you or a loved one has suffered with a MAJOR complication from the use of these oral anti-fungal medication, the attorneys listed on this web site will be happy to review your medical records and let you know whether they can assist you.

Confidential settlement for client who underwent tarsal tunnel surgery. The entire surgery was performed by the resident, not the doctor. Furthermore, the client developed chronic pain which was inappropriately treated. She suffered with chronic pain and a resultant foot deformity.

Settlement on behalf of client for $115,000.00. Defendant doctor did surgery on client’s Achilles’ tendon. During discovery it was discovered that the defendant doctor did not have the hospital privileges to perform surgery on the Achilles tendon.

Case settled immediately thereafter.

Structured settlement on behalf of client for $475,000.00. Defendant doctor did minor surgery on a 40 year old patient who had very poor circulation. They doctor failed to adequately evaluate the circulation before surgery and resulted in the wounds failing to heal ultimately requiring an amputation.

Policy Limits settlement on behalf of client. The defendant doctor failed to diagnose the foot synovial sarcoma in a timely manner.

Confidential case settlement with Defendant podiatrist following the discovery that an artificial implant used for finger joints was put into a toe joint and the patient/client was never advised or consented to this type of surgery.

Confidential case settlement against a podiatrist in that this Defendant doctor performed left foot surgery improperly in severing the Extensor Hallucis Longus tendon during surgery, failing to identify this, failing to repair the cut tendon and failing to notify the patient of his error. Client/patient required a total joint fusion due to the delay.

Confidential mediated settlement where the Defendant podiatrist failed to advise the patient/client of the risks, dangers, and side effects of the surgeries proposed or of the reasonably acceptable alternative methods of treatment and therefore the Defendant did not have actual informed consent for the surgeries proposed; had client/patient known the risks, dangers and side effects of the surgeries proposed, he would not have consented.

Confidential case settlement with podiatrist whose surgery resulted in a severe Hallux Varus deformity of the patient’s great toe immediately following the surgery. The Defendant told the patient to watch it and the client did over the next several weeks and months until it became so deformed that she eventually required several surgeries.

The podiatrist attempted to cast the blame for his own negligence upon the doctors at Mayo Clinic who performed the surgery attempting to repair the toe but was unsuccessful.

Mediated settlement where the doctor treated the patient for an infected ulceration for at least 6 months and never performed a culture of the wound or prescribed antibiotics properly. The doctor had x-rays taken but NEVER reviewed these during the entire time she treated the patient. This 28 year old patient ultimately required a below the knee amputation due to osteomyelitis.

This is a case we are letting the public know about because they should understand why malpractice cases are so difficult to prevail in. In this jury trial, a young, attractive lady had surgery performed by local podiatrists on her leg for complaints of foot pain. The surgical incisions were in the patient’s calf below the back of the knee. The Idaho podiatry law specifically limits podiatrists to performing only foot surgery.

The trial Judge refused to accept that these doctors, in performing surgeries in the calf, had performed surgery outside the scope of the podiatry law and sent the case to the jury. The jury decided that their local doctors were trying to help the patient and not negligent and most astonishing, that the surgery in the calf muscles was in fact, foot surgery.

Settlement on behalf of client for $275,00.00. Client underwent tarsal tunnel surgery in which the surgeon damaged/severed the nerve. Client developed RSD, severe pain, and foot deformity resulting in partial foot amputation. The Footlaw.com lawyers and local Iowa counsel worked together to develop the case strategy and presentation in this matter. The case settled the day before trial was to begin.

May 2002

Settlement for client in the amount of $185,000.00. Client underwent Endoscopic Plantar Fasciotomy (EPF) surgery on one foot. Despite complaints of significant pain following that procedure, the podiatric surgeon rapidly did a second EPF procedure on the other foot, which also became worse. The surgeries aggravated the client’s diabetic neuropathy.

Confidential settlement for client who developed blood clots following surgery. Client underwent numerous elective rearfoot procedures. Despite client’s history of prior blood clots and vascular problems in the leg, a tourniquet was used and no phlebitis precautions were taken. Client developed a blood clot in her leg and must take blood thinners for the rest of her life.

Defense verdict in jury trial in which Plaintiff underwent Endoscopic Plantar Fasciotomy (EPF) surgery. Plaintiff was videotaped prior to trial doing aerobic exercises, which was disclosed only days before the trial, and this videotape was shown to the jury.

Confidential settlement for client from defendant podiatrists. Client underwent extensive and overzealous surgeries which resulted in complications which required several subsequent surgeries. Client with permanent pain, swelling, and deformity.

Settlement for client in the amount of $325,000.0. Client underwent neuroma surgery by an orthopedic surgeon. Client was suffering with Reflex Sympathetic Dystrophy (RSDS) prior to being advised to undergo this elective nerve surgery and the contraindicated surgery ignited the RSDS throughout her entire body.

Settlement for client in the amount of $35,000.00. Client underwent surgery on the fifth (smallest, little) toes for which inadequate consent was given and complications developed. This required two additional surgeries.

Settlement for client in the amount of $130,000.00. Client underwent aggressive, excessive, tendon transfers and lengthening procedures in conjunction with hammertoe surgery. The tendon transfers and lengthening were not indicated given the client’s age, his foot condition, and the minimal amount of symptoms he had prior to surgery.

Settlement for client in the amount of $35,000.00. Client suffered with Reflex Sympathetic Dystrophy (RSDS). The defendant failed to follow his partner’s written advice to treat the RSDS, and therefore, the client was improperly treated by doctor.

Workers Compensation settlement for client. Client developed Reflex Sympathetic Dystrophy (RSDS) following an employment related injury.

Confidential settlement for client from podiatrist who operated on a young lady. The podiatrist performed a bunion removal negligently. The doctor failed to diagnose the complications which resulted in permanent pain and deformity of her foot.

Settlement for client in the amount of $215,000.00. Client was a young, athletic female who underwent elective foot surgery. She developed an infection and the podiatrist was negligent in failing to timely identify and treat the infection resulting in permanent deformity and requiring subsequent fusion of the toe..

Confidential settlement for client from both defendant podiatrist and general surgeons. Client, a known insulin diabetic patient, underwent elective and unnecessary foot surgery. The foot became infected, developed osteomyelitis (bone infection) with ultimate amputation.

Confidential settlement for client. Client was an elderly woman who underwent knee replacement surgery performed by an orthopedic surgeon and hospital residents. The residents performed a large portion of the surgery but following it, client developed pain, foot drop, and numbness. During the surgery, the Peroneal nerve was injured which resulted in the permanent complications.

Executor of patient’s estate brought medical malpractice action against physician for allegedly misdiagnosing malignant tumor in patient’s foot.

DUPONT, Chief Judge.

The plaintiff, on behalf of his decedent, Susan Condon, instituted this medical malpractice action against the defendant physician, Joseph Weiss, for allegedly misdiagnosing a malignant tumor on Condon’s foot. We reverse the granting of summary judgment rendered in favor of the defendant.

Patient brought medical malpractice action against orthopedic surgeon and vascular surgeon, alleging that amputation of patient’s leg below knee resulted from defendants’ negligence in failing to appreciate seriousness of inadequate blood supply to his foot and in failing to revascularize in timely manner.

Pfeifer, J., issued concurring opinion.

Cook, J., issued concurring opinion in which Moyer, C.J., concurred.

Wright, J., issued dissenting opinion.

On August 24, 1989, Nakoff [FN2] filed a malpractice action against Drs. Essig and Papas. [FN3] Nakoff contended that their negligence proximately caused the amputation of his right foot and leg below the knee. At trial, Nakoff maintained that Drs. Essig and Papas had been negligent in failing to appreciate the seriousness of the inadequate blood supply to his foot and in failing to revascularize it in a timely manner. The jury returned a $2,500,000 verdict in favor of Nakoff and against Drs. Essig and Papas. In conclusion, we hold that a trial court has broad discretion when imposing discovery sanctions. A reviewing court shall review these rulings only for an abuse of discretion. We fail to find the trial court abused its discretion in its rulings.

Judgment reversed.

Medical malpractice action was brought against corporate medical provider based on alleged failure to provide patient with aggressive treatment of his diabetes, resulting in amputation of his leg.

TERRY, Associate Judge.

This is a medical malpractice case originally brought by James and Eunice Robinson against Group Health Association (“GHA”), a corporate medical care provider. Appellants claimed that the failure of GHA to provide Mr. Robinson with aggressive treatment of his diabetes in October 1989, when he visited GHA complaining of an ulcer on his foot, resulted in the amputation of his leg below the knee in January 1990. They asserted that a proper response by GHA would have resulted in a far less debilitating treatment and would have saved Mr. Robinson’s leg and most of his foot. We conclude that the testimony of Dr. Singer, as it related to the issue of proximate cause, was sufficient to allow the case to go to the jury. According to Dr. Singer, the failure of GHA to refer Mr. Robinson for vascular evaluation in October or November resulted in his below-the-knee amputation in January. Dr. Singer testified to “a reasonable degree of medical certainty,” which he equated to a greater than fifty percent chance (“more likely than not,” to use Prosser’s words), that if there had been an early vascular consult, followed by an angioplasty and perhaps a partial foot amputation, a below-the-knee amputation could have been avoided. Although GHA presented contrary testimony from Dr. Goldberg, Dr. Singer’s testimony was sufficient to permit “a reasonable juror [to] find that there was a direct and substantial causal relationship between [GHA’s] breach of the standard of care and [Mr. Robinson’s] injuries.

Patient sued physicians for medical malpractice, alleging that she developed Reflex Sympathetic Dystrophy (RSD) as result of surgery that should not have been performed and, in any event, was negligently performed STERN, J.A.D.

This is another difficult case involving a claim of medical malpractice impacted by a pre-existing condition and assertions that the patient’s health habits (specifically excessive smoking) contributed to her condition. Plaintiff contends that she developed *125 Reflex Sympathetic Dystrophy (RSD) as a result of surgery that should not have been performed and, in any event, was negligently performed. We affirm the judgment for defendants.

Patient brought medical malpractice action against physician, alleging that physician was negligent in amputating toe despite evidence that she might not have been suffering from osteomyelitis. The Superior Court, Law Division, entered judgment for patient. Defendant appealed. The Superior Court, Appellate Division, reversed. Patient sought review. On grant of certification, 142 N.J. 455, 663 A.2d 1361, the Supreme Court, Coleman, J., held that: (1) physician failed to establish that any preexisting condition of patient combined with physician’s alleged negligence as required to warrant Scafidi instruction on whether physician’s alleged negligence combined with condition to cause harm to patient, and (2) sufficient evidence supported determination that physician was negligent in concluding that patient had osteomyelitis and in performing amputation.

COLEMAN, J.

The judgment of the Appellate Division is reversed and the jury verdict reinstated.

Patient brought medical negligence action against physician, radiologist, and hospital for failure to diagnose broken bone in her foot and failure to cast her foot. The 189th District Court, Harris County, Richard Millard, J., granted defendants’ motions for summary judgment and patient appealed. The Court of Appeals, Cohen, J., held that: (1) hospital’s motion for summary judgment was affirmed where patient did not assign error to two of hospital’s independent grounds that doctors were independent contractors and not hospital employees and that doctors were not ostensible agents of hospital; (2) radiologist’s proof was insufficient to sustain summary judgment where he did not refute patient’s allegation that he should have diagnosed broken bone in her foot; and (3) physician’s proof was insufficient to sustain summary judgment where he did not explain why he failed to diagnose broken foot or cast patient’s foot.

Affirmed in part, reversed and remanded in part.

OPINION

COHEN, Justice.

This is an appeal from a summary judgment in a medical malpractice case for the defendants, Memorial Southwest Hospital (the Hospital), Dr. Carl Hamilton, and Dr. William Pfeiffer. We affirm the Hospital’s summary judgment. Because the doctors’ summary judgment evidence was conclusory, we reverse and remand the claims against them.

Patient brought medical malpractice action against podiatrist. The Superior Court, Judicial District of Hartford-New Britain at Hartford, Walsh, J., awarded patient $90,000. Podiatrist appealed. The Appellate Court, Daly, J., held that damage award was not excessive.

Affirmed.

DALY, Judge.

The trial court found that the defendant had failed to satisfy the requisite standard of care in the following areas: (1) the November 3, 1988 failure to anesthetize properly; (2) the November 17, 1988 failure to anesthetize properly; (3) the failure to provide adequate warning to the plaintiff of the procedure and potential complications; (4) the failed operation of November 17, 1988; (5) the advice to the plaintiff to break her own bone; (6) the failure to act in a prompt manner to complete the operation. After determining that the permanency of the deformity would not be considered in assessing damages, the court asked each party to state its opinion of the reasonable value of the case. The defendant assessed the damages to be $6000 to $8000 while the plaintiff stated that $30,000 was an appropriate award. The trial court awarded damages of $90,000.

Patient brought medical malpractice suit, alleging that doctor scraped his right toe with same instrument that he used to treat his patient’s infected left foot, resulting in infection in toe which resulted in its amputation. The Circuit Court, Cook County, Thomas P. Quinn, J., entered summary judgment in favor of defendants, and plaintiff appealed. Affirmed.

Presiding Justice RAKOWSKI delivered the opinion of the court:

Plaintiff filed suit against defendants, as well as against Dr. Eugene Dolehide (individually and doing business as Medicine and Surgery S.C.) and the Sisters of St. Mary as the owner of St. Francis Hospital. In Count I of his complaint, plaintiff alleged that he suffered from Diabetes-Mellitus, which Dr. Dolehide had treated since prior to 1981. In 1983, Dolehide treated a sore on plaintiff’s left foot. In January of 1984, plaintiff was referred to defendant McLeod, a podiatrist. According to the complaint, defendant was treated by an agent of McLeod, defendant Fiscella, on January 12, 1984, and January 21, 1984. Plaintiff alleged that Fiscella was negligent in that Fiscella “treated plaintiff’s left foot * * * leaving the contaminated foot open and using the same instrument as used on the contaminated left foot opened [on] plaintiff’s right toe.” Resultingly, according to plaintiff, his right big toe became infected and ultimately had to be amputated.

Accordingly, the judgment of the circuit court is affirmed.

AFFIRMED.(For defendant doctors)

McNAMARA and EGAN, JJ., concur.

WAGNER, Chief Judge: Appellants, Frank Durphy and his wife, Elizabeth Durphy, filed a medical malpractice action against Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. (Kaiser) alleging that Kaiser’s physician employees negligently failed to diagnose timely and treat properly Mr. Durphy’s osteomyelitis, a bone infection, as the result of which Mr. Durphy’s right foot had to be amputated. Mrs. Durphy sued for loss of consortium resulting from Kaiser’s negligence. Kaiser denied the allegations of negligence and contended that any injuries and damages sustained by Mr. Durphy resulted from his own contributory negligence in failing to comply with conditions essential for the care of his diabetic condition. The jury returned a verdict for the Durphys in the amount of $2 million.

For the foregoing reasons, the orders of the trial court entering judgment for Kaiser as a matter of law or alternatively granting a new trial are reversed, and the case is remanded for reinstatement of the jury’s verdict in favor of the Durphys and further proceedings consistent with this opinion. Reversed and remanded.

Patient brought medical negligence action against physician, radiologist, and hospital for failure to diagnose broken bone in her foot and failure to cast her foot. The 189th District Court, Harris County, Richard Millard, J., granted defendants’ motions for summary judgment and patient appealed. The Court of Appeals, Cohen, J., held that: (1) hospital’s motion for summary judgment was affirmed where patient did not assign error to two of hospital’s independent grounds that doctors were independent contractors and not hospital employees and that doctors were not ostensible agents of hospital; (2) radiologist’s proof was insufficient to sustain summary judgment where he did not refute patient’s allegation that he should have diagnosed broken bone in her foot; and (3) physician’s proof was insufficient to sustain summary judgment where he did not explain why he failed to diagnose broken foot or cast patient’s foot.

Affirmed in part, reversed and remanded in part.

OPINION

COHEN, Justice.

This is an appeal from a summary judgment in a medical malpractice case for the defendants, Memorial Southwest Hospital (the Hospital), Dr. Carl Hamilton, and Dr. William Pfeiffer. We affirm the Hospital’s summary judgment. Because the doctors’ summary judgment evidence was conclusory, we reverse and remand the claims against them.

Patient sued physician, alleging that physician failed to properly inform her of risks of surgery prior to obtaining her consent for bunion surgery. The Civil District Court, Parish of Orleans, No. 86-2448, Max N. Tobias, Jr., J., entered judgment for patient. Physician appealed. The Court of Appeal, Armstrong, J., held that: (1) evidence supported finding that physician failed to fully inform patient of “risks” of surgery, and (2) evidence supported finding that reasonable person in plaintiff’s position would not have consented to surgery if fully informed of “risks.”

Affirmed for Plaintiff.

ARMSTRONG, Judge.

Mrs. Hartman went to see Dr. D’Ambrosia because she had a bunion on the great toe of her right foot. She had been to see another doctor previously but went to see Dr. D’Ambrosia on the recommendation of a friend who also was a friend of Dr. D’Ambrosia. There was some sort of mix up as to Mrs. Hartman’s appointment time and she arrived just as Dr. D’Ambrosia was supposed to leave for a meeting. This circumstance seems to have caused the appointment to be quite brief, as little as fifteen minutes, and the time spent included some purely social conversation. This would have left little time for Dr. D’Ambrosia to give *2 much explanation of the risks of the surgery. Also, this brief appointment was the only time Mrs. Hartman was seen by Dr. D’Ambrosia until the surgery.

Parents brought medical malpractice action against physician who performed clubfoot surgery on their child, alleging that physician failed to obtain parents’ informed consent, and that physician’s negligent postoperative care caused foot to swell within cast, cutting off blood flow to portion of foot and eventually requiring amputation of significant portion of foot. The Mobile Circuit Court, No. CV-89-4052, Michael E. Zoghby, J., directed verdict for physician on informed consent claim, and subsequently entered judgment on jury verdict for physician on postoperative care claim. Parents appealed. The Supreme Court, Butts, J., held that: (1) parents presented insufficient evidence on their informed consent claim, and (2) trial court erred reversibly by concluding that results of color Doppler tests on child’s foot were required to be disclosed pursuant to pretrial discovery order.

Affirmed in part, reversed in part, and remanded.

BUTTS, Justice.

The plaintiffs in this medical malpractice action, James Phelps and his wife Cynthia Phelps, appeal from a judgment based in part on a directed verdict and in part on a jury verdict entered in favor of the defendant physician, Dr. Thomas Dempsey, an orthopedic surgeon. The Phelpses brought the action as next friends and parents of James Phelps, Jr., a minor who underwent amputation of a significant portion of his right foot because of complications following surgery to correct a clubfoot condition. James, Jr., was born with spina bifida.

The elements of a cause of action against a physician for failure to obtain informed consent are: (1) the physician’s failure to inform the plaintiff of all material risks associated with the procedure, and (2) a showing that a reasonably prudent patient, with all the characteristics of the plaintiff and in the position of the plaintiff, would have declined the procedure had the patient been properly informed by the physician. The Phelpses did not testify that they would have declined corrective surgery on their child’s clubfoot if they had been informed of the increased risk of post-operative wound infection in children with spina bifida. Moreover, both Dr. Dempsey and Dr. MacEwen testified that had corrective surgery not been performed on the child’s clubfoot, the deformity would have worsened and would have led to the onset of further complications that might have resulted in amputation of the entire foot at a later date. Thus, we conclude that the Phelpses did not present substantial evidence that had they been informed of the increased risk of post-operative wound infection, they, acting as reasonably prudent parents, would have declined the surgery. The trial court properly directed the verdict in favor of Dr. Dempsey on this claim. That portion of the judgment based on the directed verdict is affirmed. END OF DOCUMENT Parents brought medical malpractice action against physician who performed clubfoot surgery on their child, alleging that physician failed to obtain parents’ informed consent, and that physician’s negligent postoperative care caused foot to swell within cast, cutting off blood flow to portion of foot and eventually requiring amputation of significant portion of foot. The Mobile Circuit Court, No. CV-89-4052, Michael E. Zoghby, J., directed verdict for physician on informed consent claim, and subsequently entered judgment on jury verdict for physician on postoperative care claim. Parents appealed. The Supreme Court, Butts, J., held that: (1) parents presented insufficient evidence on their informed consent claim, and (2) trial court erred reversibly by concluding that results of color Doppler tests on child’s foot were required to be disclosed pursuant to pretrial discovery order.

Affirmed in part, reversed in part, and remanded.

BUTTS, Justice.

The plaintiffs in this medical malpractice action, James Phelps and his wife Cynthia Phelps, appeal from a judgment based in part on a directed verdict and in part on a jury verdict entered in favor of the defendant physician, Dr. Thomas Dempsey, an orthopedic surgeon. The Phelpses brought the action as next friends and parents of James Phelps, Jr., a minor who underwent amputation of a significant portion of his right foot because of complications following surgery to correct a clubfoot condition. James, Jr., was born with spina bifida.

The elements of a cause of action against a physician for failure to obtain informed consent are: (1) the physician’s failure to inform the plaintiff of all material risks associated with the procedure, and (2) a showing that a reasonably prudent patient, with all the characteristics of the plaintiff and in the position of the plaintiff, would have declined the procedure had the patient been properly informed by the physician. The Phelpses did not testify that they would have declined corrective surgery on their child’s clubfoot if they had been informed of the increased risk of post-operative wound infection in children with spina bifida. Moreover, both Dr. Dempsey and Dr. MacEwen testified that had corrective surgery not been performed on the child’s clubfoot, the deformity would have worsened and would have led to the onset of further complications that might have resulted in amputation of the entire foot at a later date. Thus, we conclude that the Phelpses did not present substantial evidence that had they been informed of the increased risk of post-operative wound infection, they, acting as reasonably prudent parents, would have declined the surgery. The trial court properly directed the verdict in favor of Dr. Dempsey on this claim. That portion of the judgment based on the directed verdict is affirmed.

Patient brought medical malpractice action against orthopedic physician arising out of latter’s treatment of former for ankle injury.

Plaintiff injured his left ankle sliding into second base while playing softball. He was treated at the Jacksonville Memorial Hospital emergency room where X-rays were taken. The next day he took the hospital X-rays with him to the doctor, an orthopedic surgeon. The doctor interpreted the X-rays to reveal an old fracture, but no acute or fresh break. He treated the ankle initially with a compression wrap to control the swelling and then placed the ankle in a non-weight bearing case. The doctor diagnosed Plaintiff’s injury as a ligamentous sprain and treated him. The doctor took no additional X-rays, relying on those obtained at the emergency room. From the outset and during the doctor’s treatment periods, Plaintiff continued to experience pain and swelling. After a short walking leg cast was applied, Plaintiff was advised to begin walking with support of the cast.

During the course of treatment Plaintiff continued to express concern about the pain, discomfort, swelling and general appearance and deformity of his left ankle and foot. Eventually, because of his concern over the continued pain, swelling and deformity of his ankle and his inability to bear much weight upon the left ankle, Plaintiff sought opinions from other orthopedic surgeons in Jacksonville. After taking additional X-rays and tomograms, one of the subsequent orthopedists concluded that the original doctor had misdiagnosed the injury. A triple arthodesis fusing the three surfaces of the talonavicular joint in Plaintiff’s left ankle to stabilize the joint, alleviate the pain and permit some use of his left foot. After the surgery Plaintiff experiences a deformity and lack of motion which was rated as a 30% medical impairment to the left lower extremity.

The jury returned a verdict for Plaintiff and judgment followed. The court entered its final judgment in accordance with the verdict of $145,000.

Confidential settlement for elderly client from podiatrists who performed multiple foot surgeries, some of which were not indicated. The podiatrists failed to recognize post-operative complications including osteomyelitis which resulted in amputation.

Confidential settlement on behalf of military dependent. Client underwent bunion surgery in which the podiatrist over-corrected the joint resulting in a Hallux Varus or lobster claw deformity. The joint did would no longer move without pain resulting in a frozen joint and permanent disability. The Footlaw.com lawyers and local Idaho counsel worked together to develop the case strategy and presentation in this matter. The case settled during mediation.

Confidential settlement for client from a podiatrist who performed bunion surgery negligently. The podiatrist did not disclose to her patient the serious post-operative complications exhibited on x-rays resulting in the patient having her joint totally fused together by a subsequent treating orthopedic surgeon. Podiatrist allegedly committed insurance fraud which prompted an expeditious settlement.

Settlement for a young male client who was involved in a motor vehicle accident. Client sustained multiple limb fractures which required several surgeries to attempt reduction. Despite the surgeries, client eventually developed a permanent inability to use the limb and reflex sympathetic dystrophy (chronic regional pain syndrome). The case was settled for policy limits from the tortfeasor who was driving the car and a smaller additional settlement from the client’s own under-insured motorist insurance policy.

Confidential settlement on behalf of a client who is a registered nurse. Client underwent bunion surgeries in which the podiatrist performed the incorrect surgical procedures. The bones in the client’s foot were never properly aligned nor corrected resulting in a surgical failure and immediate re-occurrence of the client’s problems. The Footlaw.com lawyers worked together to develop the case strategy and presentation in this matter. The case settled during mediation.

Confidential settlement for client from a podiatrist who treated the patient for diabetic foot problems. Podiatrist failed to timely perform appropriate tests including x-rays and wound cultures. The podiatrist prescribed antibiotics without any groundwork and delayed in referring the client to an infectious disease specialist. The client ultimately was seen by an infectious disease specialist and a diabetic wound surgeon but it was not in time to save part of the foot which was amputated. This case settled prior to the Florida statutory pre-suit period.