The plaintiff presented to the defendant podiatrist in July of 2009 with a traumatic injury to her right big toe joint after kicking a door jamb while running barefoot through her house. She had previously been a patient of the same podiatrist in 2008 for an unrelated problem on her left foot for which the podiatrist had performed surgery that healed uneventfully. The defendant initially diagnosed the plaintiff with a contusion of her big toe joint, but later concluded that she had degenerative arthritis and hallux limitus. Over the course of the next five months, he treated her conservatively, including performing a total of five steroid injections in or around the big toe joint. However, the plaintiff continued to complain of pain.
The plaintiff left the defendant’s care in January of 2010, and sought treatment from a different podiatrist, who performed extensive surgery on the big toe joint, including placement of a hemi-implant, in February 2010. That implant ultimately failed, and in December of 2011, the plaintiff underwent a fusion of the big toe joint by an orthopedic surgeon. The plaintiff subsequently developed an nonunion at the fusion site, and in 2014 underwent an experimental salvage procedure at Duke University Medical Center. Although this surgery resulted in improvement of the plaintiff ’s pain complaints, she was not pain free, and was also unable to walk normally. There was the potential for the future amputation of part of her foot.
The plaintiff ’s podiatric expert testified that the defendant breached the standard of care by giving the plaintiff too many steroid injections generally, and specifically by continuing to give her any injections after receiving the report of an MRI which suggested the presence of a fracture in the metatarsal and/or sesamoid bones. Both the podiatric expert and the orthopedic surgery expert, who performed the most recent surgery at Duke, testified that the steroid injections essentially destroyed the plaintiff ’s big toe joint, resulting in the need for all of the subsequent surgeries. The plaintiff attempted to qualify the orthopedic surgeon as a standard of care expert, but the court sustained the defendants’ objection to his qualification on the grounds that he was a resident and fellow within one year of the treatment at issue, and therefore did not have an active clinical practice at that time as required by Virginia Code § 8.01-581.20.
The defendants presented testimony from a podiatrist and an orthopedic surgeon that the steroid injections were reasonable and appropriate in light of the plaintiff ’s condition. They advised the jury that it was more important to focus on the total amount of steroids injected into the joint rather than the absolute number of injections, and that the amount injected in this case was relatively small. The defendants also presented testimony from the orthopedic surgeon, who had trained the plaintiff ’s expert, that the steroid injections did not cause any injury to the plaintiff. He testified that the plaintiff ’s MRI did not demonstrate a fracture anywhere in her foot, and explained that what the plaintiff ’s experts suggested was evidence of bone destruction from steroids was in fact evidence of disuse osteopenia because the plaintiff had been off of her foot. The defendants also presented the video deposition of the podiatrist who had performed the initial surgery on the plaintiff. She testified that she offered steroid injections to the plaintiff on her first visit. Equally important, she testified that the previous steroid injections did not cause the condition for which she performed surgery.
The jury deliberated for approximately 30 minutes before returning a defense verdict.
Type of action: Medical Malpractice
Injuries alleged: Destruction of big toe joint requiring three subsequent surgeries
Name of case: Susan Allen v. Colonial Foot Care
Court: City of Hampton Circuit Court
Case no.: CL14-1870
Tried before: Judge
Name of judge: Judge Dean R. Sword (ret.)
Date resolved: Mar. 11, 2016
Special damages: $85,000.00
Demand: $850,000 in closing argument
Verdict or settlement: Defense Verdict
Attorneys for defendant: Carlyle R. Wimbish III and Justin W. Ward, Richmond
Attorneys for plaintiff: Christopher Anderson and Thomas Johnson, Richmond
Plaintiff’s experts: Steven Boc , DPM (Podiatry), Samuel Adams Jr., MD (Orthopedic Surgery)
Insurance carrier: PICA