e Podiatry Consent Forms

Failure to Obtain Informed Consent  

Case Law Report 1: Podiatry Management 11/01/2008 [# 3,338]  

Facts of the Case: 

This damages-only case involved the plaintiff’s right to decide whether or not to receive additional medical treatment/surgical procedures to the feet, which established the physicians’ duty to inform the patient. The plaintiff maintained that the two defendant podiatrists misrepresented her rights as to the nature of the surgery that they proposed to perform. She alleged that the surgeons did not obtain an informed consent and that they negligently performed the surgeries, leaving her with a fused joint in her large and small toes, ataxic gait and ongoing pain and in her smaller toes, preventing her from walking properly, enjoy jogging, and race walking, as she once did, and to live a pain-free life.

The Plaintiff:

The plaintiff, who was a healthy woman and an avid jogger and race walker, was a female in her mid-50’s at the time she visited the two defendant podiatrists. She contended that she had two office visits prior to surgery. She maintained that the defendants advised her that she needed an in-office surgical repair of her feet due to all the years of jogging, which had caused bursitis on the balls of her feet, as well as, hammertoes. The procedure, called Arthrodesis, is usually reserved for more rigid toes or severe cases, such as when there are multiple joints or toes involved. It is a procedure that involves a fusing of a small joint or joining in the toes to straighten them. A pin or other small fixation device is typically used to hold the toe in position while the bones are healing. She alleged that she signed a pre-operative consent form. However, she claimed that during the procedure, the doctors failed to advise her that they would be performing additional invasive surgery, which involved the fracturing of her toes on both feet. As a result, she has been diagnosed with ataxic gait and experiences continual pain in both feet and toes and can no longer enjoy jogging.

Plaintiff Testimony:

The plaintiff testified that if she had been made aware of the extensiveness and invasiveness of the procedure, she would not have consented to it. She also produced testimony that the defendants failed to obtain consent for the additional surgery. As a result, the plaintiff claimed she has difficulty walking, is no longer able to jog and experiences pain in both feet and all of her toes. The plaintiff’s expert podiatrist testified that the plaintiff has since been diagnosed with ataxic gait, and will have pre-mature arthritis as a result of the surgery. In addition, he testified that the extensive procedure was unnecessary and that she would someday be a candidate for “salvage” surgery. Plaintiff’s counsel also testified that the plaintiff’s insurance company was overcharged.

Defendants Testimony:

The defendants testified that they did, in fact, inform the plaintiff of the surgical procedure, both before and during the surgery. They maintained that the phalanges and metatarsal surgical repair was necessary. In addition, they testified that the additional surgery was necessary in order to properly correct the plaintiff’s abnormalities in her toes. They maintained that the patient signed a consent form and they produced what they claimed was the plaintiff’s signature on a consent form. The defendant surgeons maintained that the procedure was minimally invasive. Counsel for the defense argued that the surgery did not worsen her condition.

Result and Outcome:

The trial lasted three days and the trial judge entered a verdict in favor of the plaintiff. He awarded her $ 250, 000 for past pain and suffering and $ 500,000 for future pain and suffering, for a total award of $ 750,000 USD.

Plaintiff’s Expert: Dr. Ovidio J. Falcone; DPM, Astoria, New York

Source: Jury Verdict Review Publications, Volume 16, Issue 11

Speaker:If you need a moderator, expert medical witness or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com  or Bio: www.stpub.com/pubs/authors/MARCINKO.htm

Practice Management: http://www.springerpub.com/prod.aspx?prod_id=23759 

Physician Financial Planning: http://www.jbpub.com/catalog/0763745790 

Medical Risk Management: http://www.jbpub.com/catalog/9780763733421

Healthcare Organizations: www.HealthcareFinancials.com 

Health Administration Terms: www.HealthDictionarySeries.com