Orthopedic Foot and ankle Expert Witness Report

To Whom it May Concern:

Re: Medical Records of Carl K. and litigation filed by wife and children.

I, ********, M. D., have been asked to review the medical records of the above-named individual, now decedent, in a malpractice action pertaining to a simple foot surgery with resulting pulmonary embolism and death. The wife has filed a wrongful death suit. I have no financial interest in the outcome of this suit.

I am a board-certified surgeon with 35 years of active full-time practice. I have performed foot and ankle surgery all these years and my current job duties at the ********** Medical center involve performing foot and ankle surgery. I have performed talo -navicular foot fusions as well as other fusions in the foot and ankle. While at the Tucson VA from 2003-2007, I served as Chief of Orthopedics but also was involved in serving as an attending on the podiatry service and performing complicated foot and ankle surgery with the podiatry residents. The risk of post-op VTE was always considered and acted upon with these cases.

My standard of care for any foot surgery case, even if no risk factors are found, is to put the patient on either aspirin or resume their Coumadin and to duly inform the patient and or their spouse of the risks of blood clots after foot/ankle surgery. I always try to never make a patient non-weight bearing after foot and ankle surgery and use walking casts whenever possible. VTE’S and pulmonary emboli are known consequences after an injury or surgery to the lower extremities. Any period of inactivity, even long plane flights, can precipitate VTE’s. Being a current operating orthopedic surgeon, I am very familiar with the established risks for the occurrence of VTE and the standard of care of prophylaxis to prevent VTE.

After review of this case, I have formed certain opinions which are based on these records, my training, my practice experience, and my continuing medical education as well as certain scientific literature. These opinions are developed within a reasonable degree of medical certainty. I reserve the right to modify or amend these opinions should additional information become available.

Documents Reviewed

  • Records of Michael F. M.D.
  • Records of Albert G.M.D.
  • Records of **** foot and ankle, Incorporated.
  • Records of **** Hospital.
  • Records of the death certificate of Carl K.
  • Affidavit of Stephan *****, M.D.
  • Publication Venous Thromboembolism Prophylaxis in Foot and Ankle surgery – a Literature Review.
  • Capri knee score model.
  • Publication- Current Concepts Review: VTE Disease in Foot and Ankle Surgery.
  • Depositions of Mrs. K. and Expert for the defendant.


Mr. Carl K., a very large man of 44 years of age, was first seen by John M., DPM at the Wilmington foot and ankle office on 5/6 /2010. Apparently, this was a referral from an emergency room for Mr. Carl K. who was complaining of significant ankle pain. According to the deposition of Mrs. K., Carl had previously seen another podiatrist regarding this complaint. In the initial evaluation M., DPM makes a record that nothing helps Mr. K.’s pain and that he has had previous cortisone injections which only gave him temporary relief. There is no mention of describing any physical therapy or having had physical therapy prescribed. There is a notation that Mr. K. had had no surgeries that he was a one pack a day smoker and that medications were listed for hypertension as well as cholesterol treatment. In this initial report M., DPM makes a clear statement that all the joints and bones of the foot are non-tender or painful on manipulation, but that the patient had point tenderness over the course of the posterior tibial tendon and also tenderness of the plantar fascia of this right foot. X-rays were taken and the report does not note any arthritis at the talonavicular joint. M.’s impression at that time was tendinitis. Mr. K. was dispensed a walking fracture boot and no PT was ordered. At the next visit of 6/03/2010 notations report previously oral steroids were not helpful. This statement about oral steroids is repeated on each and every office. Each previous documentation is copied and pasted on each new office visit. Therefore, it seems to this reviewer that Mr. K. never had steroid injections, but only had oral steroids. Again the comment is made that that none of the joints of the foot or ankle are painful and that there is quite severe posterior tibial tendon tenderness on palpation. The diagnosis at that time was still tendinitis. The disposition was to continue the fracture boot. No injections or physical therapy were done. He was to return in one week and there was no advice about using ice, elevation etc. The patient was next seen on 6/10/ 2010 and the same exam findings were noted at that time. There is a discussion of an MRI report. The comments about the MRI indicated that there was partial tearing of the posterior tibialis tendon on the right. There is no mention of any arthritic findings in the foot or ankle. The disposition was to continue the fracture boot, obtain an AFO, stop the Clinoril, and start Voltaren. Still, there is no mention of the use of cortisone injections or physical therapy and the diagnosis was still tendinitis. The next visit of 7/14 contains the diagnosis again of tendinitis and the disposition was that of continuing the fracture boot, continuing the medication, and return for another visit. The next visit ways 9/16 where the same assessment was produced in the record and the same diagnosis was again elaborated; that being tendinitis and partial rupture of the posterior tibialis tendon. There is no change in treatment and the patient was to return in two months. Mr. K. returned short of one month on 10/ 12/2010 with no change except that the subtalar joint was found to be tender. The subtalar joint was injected with the patient to continue his previous treatment. On 11/09/2010 Mr. K. returned and he apparently indicated that he was interested in surgery. A discussion was held with Mr. K. regarding the surgery, that being a TN fusion.

Mr. K. was taken to surgery on 11/15/ 2010. In the review of the operative permit at the hospital, it does not specifically note any discussion or concerns about blood clots in the leg. I have not been able to find the specific operative report in the records. The anesthesia records reveal a start time for the surgery of 0903 and a completion time for the surgery of 1053. Therefore, this total operative time was almost 2 hours and it is presumed that a tourniquet was on the leg the entire two hours. There was some discussion apparently the next day with Mr. K. and his wife concerning a nick in the saphenous vein and some possible bleeding.
There was really no real problem noted at this post-op visit. The patient was again seen on 11/24/ 2010 and there was mild pain and the patient was continued on his non-weight bearing treatment course which had been enforced since the day of surgery. On 12 /1/2010 Mr. K. was seen in the office of Dr. M. where his notes reveal some edema of the operative area with no comments about swelling of the entire leg. And there’s also no comment about the patient having a fever or feeling bad with severe headaches etc. According to the deposition of Mrs. K., Carl had been feeling bad the day before this visit and she related those concerns to Dr. M. and he simply took his temperature and told him that he probably had a flu bug. There was no attempt at investigating the reasons for these symptoms and apparently no thoughts or concerns about blood clots or pulmonary emboli. It is noted in the records that the office of M. is adjacent to the Clinton Memorial Hospital and its emergency room. Mr. K. was sent home and was found slumped over a chair, unresponsive by his wife the next day. Mr. K. was taken by ambulance to the local hospital and then referred to the University Medical Center where all attempts at resuscitation were futile and the patient was pronounced dead.

Discussion and Conclusions

According to the deposition of Ms. K., Mr. K. had seen a podiatrist prior to seeing M., DPM. However M., DPM did not bother to obtain the prior records of treatment from this podiatrist. In M.’s document of Mr. K.’s past history, it included that of being a smoker, having hypertension, taking a cholesterol-lowering drug that has side effects one of which is that of blood clots and his obesity. It is interesting that the continuing progress notes for each and every visit are simply copied and pasted from the original evaluation. The only part of these additional progress notes that is different is that of the discussion and the disposition. Each and every progress note lists the diagnosis as that of tendinitis of the posterior tibialis tendon. Neither the x-rays nor the MRI revealed any arthritis of the foot. Then the last progress note just prior to surgery list the discussion of surgery and the planned procedure as being that of a TN fusion. Typically, posterior tibialis tendinitis or so-called shins plants are treated non- operatively with the modalities of good arch supports, physical therapy, ice, altering shoe wear to that of high tops, and frequently an injection of cortisone into the tendon sheath of this tendon. The only treatment provided for this condition by M., DPM was that of oral NSAIDS and a fracture boot. This treatment is totally inadequate for the treatment of chronic shin splints.

Mrs. K. does not remember any real conversation of M., DPM with herself and Mr. K. regarding the concerns of possible blood clots. Also, the longtime primary care physician of Mr. K., Dr. Albert G., saw this patient preoperatively and cleared him for his foot surgery but made no notations in the record he produced concerning any discussion or warnings about blood clots. Dr. G. should have known from the many episodes of contact with Mr. K. that he was at great risk for developing postoperative blood clots. Therefore, it is below the standard of care to not inform Mr. K. of those risks.

Dr. M. clearly fell below the standard of care in many areas. It is below the standard of care to perform surgery on a tendinitis without exhausting all means of the standard modalities of treatment of this condition. Having taken an adequate history and performed a standard physical exam, it is below the standard of care for Dr. M. to not advise and warn Mr. K. of the clear and present danger of a blood clot in his leg after surgery that could actually produce death. It is below the standard of care for any practicing podiatrist within the last 10 years to not recognize risk factors for the development of blood clots in the leg after foot and ankle surgery. Likewise, it is below the standard of care to not take action to provide some degree of prevention of blood clots with foot and ankle surgery.

Additionally, it is below the standard of care to not listen to a patient’s complaints which clearly indicate the probability of blood clots and to not send the patient immediately to the emergency room next door for evaluation and treatment. Had Mr. K. been sent directly to the emergency room at the time of his last post op visit with Dr. M., it is felt, within a reasonable degree of medical certainty that Mr. K. could have been rapidly diagnosed with his pulmonary embolism, treatment instituted, and the patient could have survived.


These acts of deviation of standard of care by both M., DPM and Albert G., M.D. are clearly acts of negligence which are felt to be the proximate cause of the death of Carl K. Even though unnecessary surgery was done, had it not been for the negligence of M., DPM and Albert G., M.D., Mr. K. would be alive and well today with his family.