Law Office of Dr. Michael A. Quinn, DPM, JD, LLC
PODIATRY MEDICAL MALPRACTICE
INTRO AND SCOPE OF PRACTICE
The Doctor of Podiatric Medicine (D.P.M.) is a peculiar breed of practitioner that is uniquely situated in the medical profession. In order to properly prosecute or defend a podiatric negligence case, the attorney needs an understanding podiatric principles and a familiarity with the similarities and differences between the podiatrist and other allopathic or osteopathic physicians.
A license to practice podiatric medicine and surgery is a limited license. State law governs the scope of podiatric practice. Scope of practice differs vastly among the states and in some states it is strictly localized to the foot only, others define practice to include the ankle and some include the entire lower leg. Furthermore, statutes and regulations may authorize or prohibit certain procedures such as amputation or define a practice limited to a specific anatomical level such as soft tissue only. It would be prudent for the attorney to check the states regulations when evaluating or defending a case. It would also be important to determine the state where the podiatrist received his residency training, as the scope of practice in that state may drastically differ from the state of the occurrence, possibly revealing an inexperience with a particular procedure or technique.
Podiatry practice may fall under the auspices of the state board of medical examiners or there may be a governing board of podiatric medical examiners. It may be important to ascertain which agency governs the practice, since standards of practice may be generally adopted into the General State Board of Medical Examiners regulations or standards may be defined under a corresponding agency such as the State Board of Podiatric Medical Examiners .
The traditional practice of podiatry overlaps fields of orthopedic and vascular surgery, dermatology, neurology, infectious disease, rhuematology, physical therapy , emergency medicine and radiology as they relate to the foot and lower extremity. Referral and consultation sources include all of the above and should be exercised when the facts and circumstances dictate.
EDUCATION AND TRAINING
The first two years of medical education parallel allopathic and osteopathic education culminating in the administration of the NBPME I which is the podiatric equivalent of the USMLE I. The following clinical years are distinguished by rotations devoted to podiatric practice with some exposure to allopathic medical disciplines such as general surgery and Pediatrics. Notably absent are rotations is Obstetrics and Psychology. Matriculation is confirmed upon passage of the NBPME II, the equivalent of the USMLE II.
A majority of states do require one year of residency or preceptorship training for licensure after matriculation from podiatry school. However, this training is in no way standardized or uniform and can vary from state to state as well as from program to program.
Residency programs range from one to four years and fall within four different categories; Rotating Podiatric Residency (RPR); Primary Podiatric Medical Residency (PPMR) ; Podiatric Orthopedic Residency (POR) or Podiatric Surgical Residency (PSR). The PSR programs are further numerically differentiated as PSR-12, PSR-24, PSR-36 and PSR-48 which simply denote the number of months in the program. As their titles denote, each type of program exposes the resident to different aspects of podiatric care. Generally a graduate of orthopedic and medical programs have limited surgical experiences. There are some approved fellowships in sports medicine, infectious disease and diabetic foot care. The Council of Podiatric Medical Education (CPME) web page contains information regarding program requirements.
All residents are required to keep logs of patient encounters, surgical cases scrubbed and their level of participation. Upon completion of the program, the program director certifies the accuracy of the logs. In order to complete a surgical program, the resident must satisfy a specific number of cases in different surgical categories. Upon completion, the log of procedures is submitted to the program director in order to satisfy certification requirements by the CPME and usually kept by the individual resident for reference or use during the board certification process.
Some residency programs offer the resident the opportunity to practice or operate outside the traditional scope of practice as defined by state law. Rotations in the program may include Orthopedic, General and Vascular surgery or even more specialized surgical fields. Pathology and Radiology is a requirement of most if not all programs. Internal, General and Emergency Medicine can be incorporated into some programs. However, not all programs offer such an experience. One would be wise to uncover the residency experience of the podiatrist in order to help impute knowledge if the circumstances dictate. On the other hand, this experience would not justify a podiatrist to practice privately beyond his scope.
A question may arise when a podiatrist assists other allopathic surgeons in the operating room or in office. State statues and regulations may expressly address this situation, most are silent. For the most part, podiatric malpractice carriers do not underwrite podiatrists for assisting allopathic surgeons with procedures beyond the states scope of practice. In these situations, it may be helpful to discover the hospital bylaws and privilege authorizations granted to the podiatrist by the institution.
Podiatric medicine is further distinguished from traditional allopathic and osteopathic fields by Board Certification. There are currently four certifying boards which can designate one as Board Certified in Podiatric Medicine and/or Surgery. (1) American Board of Podiatric Surgery (ABPS) (2) American Board of Podiatric Orthopedics and Primary Podiatric Medicine (ABPOPPM) (3) American Board of Medical Specialties in Podiatry (ABMSP) (4) American Podiatric Medical Specialties Board (APMSB).
The boards differ in many respects. Some boards such as the ABPS and ABPOPPM allow candidates to grandfather in or establish alternative pathways to certification. These boards apply subjective oral examinations while others are such as the ABMSP are entirely objective in nature. Some allow case submissions from residency to count toward the case requirements, such as the ABPS. Some require re-certification while others do not. Some Boards may allow a candidate who passed the examination but has not provided the case submission to hold themselves out a board qualified or eligible. Each board requires case submissions in designated criteria It would be prudent to determine when and in which manner the defendant became certified
POTENTIAL CAUSES OF ACTION
Just like any other professional malpractice case, podiatric negligence cases require a great deal of time and resources. Case selection criteria is crucial and it is well worth it to be familiar with themes of successful cases.
DIABETIC FOOT cases constitute the greatest number of potential cases, however because of underlying pre-existing conditions due to the natural progression of the disease, prosecution can be difficult. Care of the foot in a patient with Diabetes Mellitus is challenging because of the systematic effects the disease can have on the foot. Vascular, immune and neurological deficits can be present by virtue of the natural progression of the disease, and may present causation issues which need to be addressed before taking these cases. Also be sure to address patient compliance issues, as this is a common defense to these cases.
Charcot foot collapse and ulceration due to poor biomechanical management or misdiagnosis tends to happen in longstanding or poorly controlled disease. Without proper management, the deranged and altered pedal biomechanics can lead to ulceration and infection. Infections must be suspected in this population and warrant active treatment with antibiotics and/or surgical debridement, Improperly diagnosed or managed charcot feet and infection can lead to fast moving necrotizing infections, osteomyelitis and amputation. Notably the ABPS has published a guideline including treatment algorithms for the care and management of the diabetic foot.
COMPARTMENT SYNDROME is not uncommon in the lower limb after even a minor trauma. Pain, pallor, pulselessness, paresthesia and are some of the keys to this diagnosis. Time is of the essence and rapid recognition and decompression may be necessary.
RESISTANT INFECTIONS such as MRSA or VRE are common in diabetic wounds. Aggressive antibiosis and Incision and Drainage are required to treat these bugs. Depending on the practitioner’s experience, management may require the assistance of an infectious disease and radiology physicians.
AGGRESSIVE OR IMPROPER SURGERY; generally the more complex the surgery and more hardware required, the greater remuneration for the surgeon. Care should be taken to see if conservative measures were attempted and/or if improper or overly aggressive procedures were done. With respect to Bunion surgery, Hallux Varus can be a devastating consequence to a relatively simple procedure. Deviations include overly aggressive staking of the first metatarsal head or a wrong level of procedure for the severity or lack of severity of the deformity. Also, mal and non unions can result from the wrong choice of procedure.
SOFT TISSUE OR BONE CANCER; subungual (under the nail) masses or discoloration, cancerous tumors should be evaluated via biopsy early and ruled out. Plaque like discoloration of the plantar surface is suspicious and can be acrolentiginous melanoma. These tumors have an aggressive tendency, an may require lower leg amputation for curative results. Experience and knowledge biopsy techniques and surgical excision is important. Depending on the level of expertise, consultation and referral with specialists may be necessary.
RSD/ CRPS; can be seen commonly after lower extremity trauma. Podiatrist may be the first medical provider in a position to prevent, diagnose, intervene or refer.
PVD (peripheral vascular disease) Surgery on a limb with little or no vascular supply may not heal properly or at all. Vascular evaluation or referral to a vascular surgeon for clearance is imperative and vascular surgery intervention prior to pedal surgery may be necessary.
TRAUMA The foot is a complex structure consisting of 26 bones as well as some accessory bones. Certain fractures such as ankle fractures, talar fractures, calcaneal fractures, lisfranc fractures if not properly diagnosed and/or managed may lead to long term disability. Open wounds and puncture wounds, whether concomitant with fracture or not, must be investigated for tendon or ligamentous or nervous damage as well as foreign body and vascular injury.
DEEP VENOUS THROMBOSIS; Thrombus in the lower extremity venous system can manifest as normal muscle pain in the calf or unilateral swelling after prolonged rest common after foot surgery or due to other medical etiology. Because of the potentially devastating sequelae of Pulmonary embolism, the practitioner must have a high index of suspicion and act swiftly.
MEDICATION ERRORS; Seemingly innocuous medications such as antifungals, antibiotics and injectable steroids may have drastic adverse effects. Like any other medical provider, care must be taken in administering medications in the face of Liver or Renal dysfunction (usually due to diabetes). Medications commonly used by the podiatrist notoriously have an effect on other end organ systems.
IN OFFICE SURGERY AND EMERGENCY; Because of reimbursement advantages, surgeries are being performed in the podiatric office or ambulatory surgical centers. These establishments have rigorous and expensive requirements to meet approval for licensure and certification. Infection control and the availability of adequate emergency and anesthesia equipment, medications and personal are issues that may present themselves frequently.
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EXPERTS
As discussed there may be a great deal of overlap between the podiatrist and other medical professionals. By virtue of this broad specialty encompassing standards from a variety other specialties as well as their own standards, coupled with the professions increasing acceptance into mainstream medicine, the attorney may wish to use an allopathic experts in order to establish a standard of care or defend the case.
IMPROPER BILLING AND ADVERTISING
In comparison to Allopathic professionals, the podiatry profession consists of only approximately 14,000 individuals across the United States. Most practice as solo practitioners or in small groups. Because of the small number of practitioners and the fractionation due to the disparity in board certification, their political power and leverage with insurance carriers is limited. As such, private insurance remuneration can be and is different between podiatrists and their allopathic and osteopathic counterparts. Overhead is similar to other specialties and competition is fierce between other pedal providers of different specialty as well as within the profession.
Overly aggressive advertising and inflation of credentials can be encountered. Terms in advertising and marketing campaigns such as “wound care specialist” “diabetic foot specialist” are often encountered and may trigger different standards and different jury charges.
Furthermore, there is an inherent tendency to up-code in order to increase remuneration. This is particularly critical with respect to diabetic foot ulcers. One should take particular care to match the clinical evaluation of the wound in the podiatrist’s record to the degree of ulcer coded by the CPT code. If a disparity is uncovered, a credibility issue may be established or false claim revealed.
REFERENCES
The American Podiatric Medical Association (APMA) website is a resourceful website for information as well as the professional ethical code of conduct. Reliable texts include Mclamery’s Principles in Foot Surgery , Warren Joseph’s Handbook of Lower Extremity Infections, and Levine’s Diabetic Foot. Periodicals include Podiatry Today, Podiatry Management and the APMA News. Journals specifically related to podiatry include the Journal of the American Podiatric Medical Association (JAPMA), Journal of Foot and Ankle Surgery (JFAS), and Foot and Ankle International.
Michael A. Quinn, D.P.M., J.D., L.L.C.
PO Box 242
Colts Neck, NJ 07722