I am a primary care doctor living in Michigan. A few months ago, I gave a patient a steroid shot in between her second and third toe on her right foot for a condition called Morton's Neuroma. I had done xrays, tried inserts, anti-inflammatories, etc. The patient was going on a trip, and was going on a trip and didn't feel they had time for a referral. 24 hours after the shot, she came back in with a blister on the top of her foot. There didn't seem to be an infection, so we dressed the wound and told her what to look for, and to call with any concerns. She saw my partner 1 month later. She had an ulcer on her foot. It turned out to be infected, and after a week of antibiotics, my partner referred the patient to a wound clinic. She saw a podiatrist in the clinic who informed her that she had been misdiagnosed with a plantar plate tear and that the shot she had received was both inappropriate in terms of treatment choice and administration.I called the patient after receiving the wound clinic consult note. She was very upset and essentially blew me off. I called the podiatrist who felt that I had made an error, but that he would get the patient better and that there would be no issues with litigation. My partner put in a call to the patient and it was not returned. I followed this case from afar. She was treated by the podiatrist for 2 months. Her xrays and MRI of the foot were negative for infection. She, nonetheless, underwent a surgical debridement with a bone biopsy under the podiatrists care. He place Apligraf (a wound care product which stimulates healing of chronic ulcers). This was ultimately unsuccessful, and the patient was referred to plastic surgery for skin grafting. I discussed the case with this surgeon. He currently has no further plans to operate, and believes the wound will heal with medical management. I did discuss the issue of the podiatrist and myself disagreeing on the intial diagnosis, and the surgeon felt that the issue would not come to any legal action.I received a record request from a lawyer office yesterday on this patient. I am devistated obviously. Does this patient have grounds for a malpractice suit? If yes, will it likely succeed? Is there anything I can do to protect myself and my partner? Any advise would be helpful. I'm happy to pay.
Country relating to Question: United States
State (if USA): Michigan
Discussing the case with my partners. I have not had a chance to talk to our malpractice carrier.
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I'm sorry to hear about the situation that you find yourself in. Did the podiatrist feel that it was a logical mistake that anyone could make? That is, was the plantar plate tear so unlikely that the Morton's Neuroma was the more likely diagnosis?
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I have switched to Q&A so that we can communicate further. Again, did the podiatrist feel that it was a logical mistake that anyone could make? That is, was the plantar plate tear so unlikely that the Morton's Neuroma was the more likely diagnosis?
Simply put, yes. It is described in the literature that the 2 issues can get confused. Plantar plate tears are not well known in the medical literature. They are more commonly discussed in the podiatric literature.
Is this something that a reasonably and sufficiently trained medical professional would have treated as Mortons Neuroma, or would it generally be referred to a podiatrist?
It depends on who you ask. I would argue that based on my xrays, history, and exam, my management was reasonable. Even the podiatrist that treated the patient thought that a trained podiatrist could have come to a similar conclusion. He also felt that I should have referred and that I made a mistake. I discussed this with a different podiatrist and he said that what I did was reasonable.
Scotty, can we try chat again?
,I'm at work, and though it is slow, I'm afraid I will be asked to see a patient soon, and I am interested in your thoughts on my case.
a patient just walked in. Im running out of time Scotty. Are you still there? , ,I'm at work, and though it is slow, I'm afraid I will be asked to see a patient soon, and I am interested in your thoughts on my case.
At this point the attorney is seeing if there is a case. There are two types of main, monetary damages: actual and punitive. Punitive damages apply in situations where there was intentional tortious behavior or gross negligence. Punitive damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will in fact receive all or some portion of the punitive damage award. Actual damages are damages that are intended to compensate the plaintiff for damages actually incurred by the plaintiff, rather than to punish the defendant. Now under the category actual damages, you have economic and non-economic damages. Economic damages are the actual, out of pocket damages suffered by the plaintiff. This will include property damages (damage to a car in a car accident, broken equipment, etc...), lost wages as a result of losing a job, or being out of work, in the hospital, etc..., medical bills, rehab bills, and even future medical bills (if applicable). These are actual, quantifiable numbers. Then you have non-economic damages, which are more "fuzzy". These are pain and suffering, mental anguish, loss of companionship, and so forth. This is where you get compensated for the pain that you suffered, even though you can't actually "quantify" that pain. Now the problem with non-economic damages is that they are hard to quantify. If you've suffered an amputation, you should get a lot more non-economic damages, because that is going to significantly affect your life, for the rest of your life. But if you have suffered something that is not chronic, but temporary, that is going to adjust the number downwards, because it is not going to be a lifelong issue, and would not constitute the disfigurement that generally is compensated in greater numbers in court.In Michigan, non-economic damages are capped at $280,000. What the economic damages are is uncertain, but they would have to be foreseeable, which means that they're probably limited to the medical costs, any rehab costs, and any other costs directly associated with the care and treatment of this individual. Most likely this attorney has already taken or is considering taking this case on "contingency", which means he would take 1/3 of the award or settlement. He's trying to see if it's even worth taking to court and spending the money to try to get an award. He would need an expert witness on his side that would testify that you were negligent. Basically the expert's qualifications must match the most relevant specialty, instead of, or in addition to, the board certification of the defendant physician. That is, basically the plaintiff would probably need two expert doctors, one podiatrist and one general practice, that would testify that what you did was wrong. And that's expensive. A medical provider is only negligent when the signs and symptoms would lead a reasonable doctor to make a proper and timely diagnosis. This standard of care is based upon the training, skill, and specialty of the physician and the jury must determine whether a reasonable physician would have made the proper diagnosis. And that could be a battle of the experts (on their side and on yours). Ultimately whether the attorney pursues this matter depends on a number of factors, but mainly the likelihood of success at trial, the likely award if successful, the likeliness of your insurance carrier to settle before trial, and the costs associated with the legal action. Does he have a case? That's hard to say, but I've seen attorneys take very fishy cases to trial just to see what a jury would do, and I've seen plenty of lawsuits filed with the hopes of settling with the defendant and no intention of even taking it to trial. So it's not necessary that they have a good chance of success to sue or try to recover. It is less likely that this attorney will take the case too far if he deems it economically unfeasible (that is that it costs more than the expected value, etc...) Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
Thank you. That was helpful. In my case, is there anything that I can or should do to protect myself and my partner?
I have an issue, and I want to be clear on it. I feel that my podiatrist colleague threw me under the bus in an effort to protect his turf. It is likely the reason this lady thinks she has a case. I have been put under the microscope, and no one I work for or with believes that malpractice was commited. That doesn't seem to be as much of an issue as profitablility in a potential lawsuit. With this in mind, is there any strategy that I could take to protect myself and my collegues?
To be completely honest: at this point, there's not much you can do, other than fact gathering and making certain that you have witnesses and other individuals lined up. You can't do anything to hide or otherwise shield assets at this time (without being liable for a fraudulent transfer or potentially piercing the veil of a professional corporation or other limited liability entity that you have). She's "lawyered up" meaning that you cannot personally talk to her, but have to communicate through her lawyer. You can make your beliefs known that you know that you've done nothing wrong and that you intend to fight this to the bitter end. (that would be considered in the cost/benefit analysis of the medmal lawyer, in that if there's no chance for settlement, assuming he believes you in this threat, then he may think that the case is not worth taking). But again, at this point, after the act and after she's lawyered up and you're on notice that there's potential litigation, it's essentially a holding period that would be scrutinized if you transferred assets, did any unplanned or unforeseen business decisions, etc... to try to avoid a judgment.
The sad reality Scotty is I am a walking debt. I don't have any assets (that aren't morgaged) save for my good name and employablity. I am hopeful that my malpractice insurance will cover the costs of any settlements, awards, etc. I have told my employers. I won't make any major financial decisions. I thank you for the advise. One final question, and you obviously won't be held to it...
Will this likely move forward? Based on your experience and knowledge, can you see this patient successfully pressing a lawsuit?
I didn't get a response to my last question. I just wanted to check in and make sure you are still there. Please respond.
That's hard to say. If this attorney doesn't take the case, the patient might take it to another attorney and another one. Unless the patient is willing to pay the hourly rate for an attorney, it's up to the attorney as to take the case on contingency or not. And like I said, that would be based upon the expected value versus the costs.
Licensed Texas General Practice Attorney
Thank you for your time Scotty. Take care.
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