RE: Patricia Lautenschlager: 

1. Stone:  No intra-operative x-rays were taken.
     Yes they were. The x-ray reports are included in the record in the information from MedCenter One. The intra-operative x-rays revealed that there was good alignment and flush surfaces of the ankle arthrodesis site. The point here was that the x-rays were not done and I have shown that they were done. Why was there any discussion of the x-rays when this wasn’t part of the complaint? The complaint was that the ankle was fused in varus. The Board members all agreed that the varus complication is within the SOC. So why the discussion about the technical aspects of the ankle arthrodesis. There is only one of the four Board members that are familiar with this procedure. Pages of the record are labeled #1 at the left top corner. There are four pages labeled #1.
   
2. Whether the calcaneal osteotomy can address the varus deformity according to the literature. 
   The fact that the osteotomy physically moves the position of the heel shows that it does address the varus deformity. Dr. Expert discusses the fact that this is an acceptable approach to correct this problem extensively on page 19 (# 4,5,6), page 20 (# 7) and on pages 21 last paragraph during his analysis and page 23 during his analysis. There is also a reference to the literature on page 19 (reference # 14).
   
3. Found the record void of informed consent of the potential complications that may arise as a result of this type of procedure. 
   There are three examples of areas where the patient was given informed consent. These pages are labeled #2. There are several possible specific complications listed. “I explained to the patient and her husband the possible complications…”
   
4. Need to undergo further surgical intervention.  
   All the Board members at the meeting on 1/12/00 as well as in the briefs by Dr. Expert and Dr. Expert state that one of the complications of ankle fusion is a varus deformity. Since this is an acceptable complication then it would have to be acceptable to have the patient undergo further surgery to correct the problem. In other words I am being criticized for not dealing with the problem quickly enough but also I am being criticized for dealing with it as well because it would involve more surgery for the patient. The other point is that there is the assumption that the patient would have to undergo general anesthesia and have the risk of death. The fact is that this surgery as all surgery we do can be done under spinal anesthesia. The risk of spinal anesthesia is less than general. The risk of serious complication from general anesthesia is very low and is not what the definition of g. is discussing. There can be any of thousands of reasons that someone can come up with to fit this if we are going to allow this to be a reason that fits g. For example, someone could say they had to be on oral or IV medication, they had to use crutches, they had to take time off of work, they had to travel in their vehicle to go to my clinic to be seen, they had to be in a cast, and on and on.

 

5. Deckert: Agrees with Stone

    

6. Moen: States that the procedures are not familiar to him and he doesn’t do them. He has concerns with “Issues in regards to subsequent follow up and what seemed to him to be an inappropriate response to a problem that had been created in terms of trying to recognize it and fix it.”  
   The patient first complained of the problem and the problem was identified on 8/11/93, which is in the patient’s record and labeled #3. There was not a delay therefore in recognizing it and trying to fix it.  There are many statements in the actual records of the patient’s, which explain that not only was the problem recognized but also what type of solutions were undertaken to correct the problem. I found eight places in the patient’s progress notes that show that the patient’s problem is identified and on each one of these there is discussion of what will be done to try to correct the problem in the patient’s notes dated from 8/11/93 to 3/9/94 labeled #3. These include extensive physical therapy that did help on several occasions and is part of the reason why some time past before I suggested further surgery. They also include trying a heel lift, other types of shoes, and insoles for her shoes, lateral phalange, cortisone injections, quinine, and creams. The entire evaluation and response by Dr. Expert addresses Dr. Moen’s concerns as well in the brief on pages 19-23.

7. Hofsommer: Feels the second procedure was not the best choice.  
   Dr. Hofsommer does not have the training, knowledge or experience to be able to perform either an ankle arthrodesis or a calcaneal osteotomy and therefore he cannot state whether this is a good or bad choice of procedure. The fact is that Dr. Expert who has done more ankle fusions than almost anyone else in the world does the calcaneal osteotomy as does Dr. Expert who advised me to perform the calcaneal osteotomy. This is in the brief in the affidavit. The fact that I have been Board Certified to perform this type of surgery and that hospitals have given me the privileges to perform this surgery proves that I have the ability to identify when and what procedures need to be performed. This information is in the brief on page 19 and in my CV at the end of the brief. The most important fact that was missed by Dr. Hofsommer is that Dr. Expert identified independent literature that addresses this specific problem (varus heel) and that it can be corrected by use of a calcaneal osteotomy, which is reference #14 on page 19 in the brief. If Dr. Hofsommer would read this article which is included in the brief he would see that performing a calcaneal osteotomy is a good choice of procedure and that it can increase the range of motion which is exactly what I was trying to do for the patient instead of having to perform an arthrodesis (fusion) which would potentially lead to other problems for the patient. The problems with this patient as it says in the progress notes on the same dates above labeled #3, is that her subtalar joint became stiff after the ankle fusion. Her subtalar joint motion was decreased and this was the cause of the varus position. If I were given a chance to explain this it would be a lot easier for someone to understand and evaluate this and the other cases. But the Board members don’t seem to want to understand what really happened with these cases and are obviously afraid of speaking to me about these cases.

 

Geraldine Parsley:

1. Hofsommer: “There are inconsistencies between the admission history and physical where the MRI findings were not interpreted correctly.”
     It is well known that radiologists often have a different interpretation of x-rays, CT’s and MRI’s compared to other specialists not just Podiatrists. This has to do with medical records and should not be an issue. Dr. Hofsommer states that what I said in my pre-operative H & P compared to that in the operative report is inconsistent.

    

2. He states, the operative report has Achilles tendon rupture. 
   He is wrong. It has “status post Achilles tendon rupture with nonsurgical repair.” This means that the patient had an Achilles tendon in the past, i.e. four years before I saw her she had an Achilles tendon rupture. Dr. Johnson and Hofsommer and others interpreted this to mean that I was saying she recently had an Achilles tendon rupture and that was the purpose of doing the surgery. The patient had an Achilles rupture and because of the splint she was placed in for treatment and due to the injury itself she developed tightness of the Achilles tendon. She also developed a large nodule or lump that could be seen and felt under her skin and it was painful.

   Let’s look at the original letter from Dr. Johnson to Dr. Hofsommer first. This is labeled #4. His letter states, “I’m quite concerned that in this situation perhaps the surgery was unnecessary since the post-operative diagnosis does not at all support the surgical findings with Ms. Bodin.” The fact is that if someone takes the time to understand the procedure and why it was done the post-operative diagnosis is supported by the surgical findings. In layman’s terms the postoperative diagnosis says “tight Achilles Tendon” and the surgical findings explain the “lengthening of the tight part of the Achilles Tendon”. The operative report is labeled # 5. If the record would have been properly reviewed and/or if I would have been given five minutes to explain Dr. Johnson’s confusion this would have never gone any further. In any event the complaint had to do with the medical record and whether the procedure was necessary. Dr. Hofsommer stated that he agrees the procedure was necessary. The fact is that Dr. Johnson saw the patient after her surgery and states in his records that the procedure was necessary. Once again if these records had been properly reviewed the Board would not have proceeded with this complaint. The fact that the Board can not see the simplest facts and explanations shows bad faith and that I have no chance of having a fair chance of resolving these issues with them. 

   The actual MRI was never a part of the record. I reviewed everything that went to Dr. Expert and I never saw it. I haven’t seen the MRI since the time the patient was treated in 1994. How did Dr. Hofsommer get the MRI and why should he be allowed to review it and have two radiologists review it? I’m sure if I could look at it I can show where the changes are on the MRI and I can find two radiologists who will agree with me. This should be considered bad faith on the part of Dr. Hofsommer and the Board. I think there is ample reason here alone to throw out all of these complaints based upon the Board tampering with the process.

   The other problem with discussing the MRI is that this is not an issue in the complaint and that the MRI is part of the medical records and what the MRI report says is a medical records issue. The point is that; whatever was or wasn’t present on the MRI did not affect the patient’s treatment or surgery or healing. The surgery was still indicated and the patient healed well and was happy with the result. The doctor who sent in the inquiry/complaint was the same person who stated that the patient needed the surgery I performed and that the patient’s problem was resolved as a result of the surgery I performed. This is all in the brief on pages 8-11. There is a letter in the record from Dr. Johnson dated 2/24/94 which states, “because she has the fibrotic nodules within her Achilles tendon, we know at times that these do go on to become more symptomatic and need to be excised… they will then lose portions of their range of motion for the ankle…”This letter is labeled # 6. There is also a telephone call documented on 3/21/94 to Dr. Johnson in which he discussed the “fibrotic nodule… and will likely require an MRI and the possibility of surgical excision. This is labeled #7.

    

3. The original complaint states “failure to properly treat and care for Geraldine Parsley”. It then states, “The records do not demonstrate this surgery was appropriate and Dr. Gale’s post-operative diagnosis did not match the operative findings.”  
   This means that the complaint from the Board is not proper. The Board didn’t use “n.” as one of the grounds for disciplinary action yet the wording of the complaint refers specifically to medical records and not treatment of the patient. See the amended complaint issued on 4/20/98. This is labeled # 23.

   There is a letter in the record dated 5/9/94 to Worker’s Compensation that clearly explains what the problem was and how the problem was corrected. This is labeled # 8. The operative report is not confusing to me but if someone was confused by it all they need to do it read the rest of the record or just this letter to understand what was done and why. The point here is that this shows once again that the Board members are not interested in understanding the true picture of what happened. They have shown repeatedly that they either have not read the records closely enough.

   Dr. Hofsommer states that he doesn’t have any problems with the indications and the surgery that was performed and the healing. He has a problem with the medical records. Then he laughs and says we can’t use medical records so he looks for an excuse to put his concern in one of the other categories of grounds for disciplinary action. Then he says “I guess I really don’t find anything wrong with it.” Then he changes his mind and says, “I guess I would say it’s careless”. What’s so funny about evaluating something that could destroy the past 22 years of someone’s life and their entire professional career as well as my entire personal life and family? Inconsistencies in my dictation of procedures. Does this sound like medical records?

    

4. Moen: Says he agrees with Hofsommer about the MRI being interpreted wrong.  
   This isn’t true and should not be a consideration. See the points above. This has never been an issue in the past. How can the Board members bring up this issue when it was never considered in the record before? They are bringing up a completely new issue and complaint after the record has been closed. The complaints were never even reviewed once during this meeting. This shows that the Board is pulling things out of the air and is not interested in proper procedure and evaluation of the complaints. This shows that each of the Board members if they looked at the records at all, probably only reviewed the patient records and not the brief submitted by me. It looks to me like they read through the records and looked for what they thought were problems and took some notes about them. They don’t understand what they were supposed to be doing.

    

    

5. Then Dr. Moen says that “there’s obviously no way that one can know what the post-operative diagnosis is before the procedure is even done. That leaves me somewhat suspect that Dr. Gale consistently decides what the procedure is going to be without the information before hand.”  
   Dr. Moen has probably never dictated an operative report. If he had he would know that he was reading an operative report that is dictated after the surgery. He thought he was reading something that was dictated prior to the surgery (the pre-operative H & P). Once again, a simple mistake that he made that could have been easily cleared up. The interesting thing about this is that the other members of the Board  knew that Dr. Moen was confused about this but they didn’t bother to clear this up for him. This again shows bad faith by the Board and shows that this and all the other complaints should be dropped. He says there is a violation of SOC because I dictated my records poorly.

    

6. Stone: Agreed with Hofsommer and Moen. Stone also looked at the MRI and had a radiologist look at it for him. He says in regards to the equinus that I “was all over the universe in the thought process of whether there was or wasn’t and where it was documented and where it wasn’t documented. 
   The fact is that I was not “all over the universe.” I documented the patient had an equinus. I also documented the number of degrees of motion present on the normal and abnormal ankle as Dr. Hofsommer referred to above. Labeled # 9. Dr. Stone cannot show us anywhere in the record anything to support this statement. He then goes on to say, “In an independent report on 5/15/93, it stated there was no significant equinus and that was on a work tolerance assessment that was performed.” Labeled # 10. This is not true. The work tolerance assessment is nine pages long and is labeled #11.There are several examples of the patient’s problem being well documented in this assessment. The most pertinent comments are on page two and the abnormal measurements are on page five. How did Dr. Stone make such a blatant error when making these statement?

   You can listen to it on the tape and I would like him to show us where in the record he found this documentation. There are many instances in the record where the equinus (Achilles tendon tightness) is documented. The other fact in the record is that after the work assessment was done on 5/15/93 that Dr. Stone was referring to, the patient had another injury of her Achilles tendon. Dr. Stone has blatantly ignored the important facts that clearly justify why the surgery was performed.

7. Deckert:  “I may not add surgically to this but as I went through the information from the very beginning the doctor in Fargo had four years of assessing this particular case relative to the tightness of the Achilles tendon and I have questions also that if that be the case whether or not Dr. Gale was induced by the time span to do the surgery. I would agree then that he did not pre-operatively do as accurate a job as far as the normal standard. I don’t think he did the work pre-operatively that was necessary to fall within that standard. I don’t think he is really saying anything that hasn’t been reviewed above but if he is it’s not clear what he thinks the problem is with this case. If anything it sounds like it’s medical records to me.

   The other interesting point that was nicely missed by all the Board members is that this patient healed well and completely and that is in the record but obviously doesn’t mean anything. These are labeled  #12. As discussed in the letter I gave you on Wednesday night, there is nothing in the SOC anywhere that says I have to perform conservative care before I do surgery on someone. In fact the conservative care had been performed on this patient and she probably should have had surgery a long time before I finally did it. I have included the statement from the American College of Foot and Ankle Surgeons which states that surgery can be done without any conservative care. Again, Dr. Stone is the only Board Certified foot and ankle surgeon out of the four Board members and he knows about this information. He should have said that Dr. Deckert was incorrect and he should have indicated previously that this was not necessary.

Margie Pulkrabek:

1. Hofsommer: “There was probably inadequate conservative care given after a diagnosis of Tarsal Tunnel Syndrome and before surgery. 
   There had been three injections given by Dr. Fanous but his working diagnosis was that of a heel spur or plantar fasciitis. There are other things that can be tried for Tarsal Tunnel that are more conservative. No attempt at physical therapy, injections other methods at least from the medical records that I reviewed were tried. Because of the procedure the medial calcaneal branch was sacrificed and ended up getting numbness and lateral column pain which is a known complication of plantar fasciotomy. Because of that I felt that there was probably some procedural problems. I’m not sure that the procedure was performed maybe the best that it could. I would say that that would be podiatric medical practice that is professionally incompetent and that’s section g. And because of inadequate conservative care, I would have to also include k. Lateral column pain, if you release more than 2/3’s of the plantar fascia you generally end up with lateral column pain. If you do a subtotal plantar fascial release it is much less likely to happen, it still can. This was fairly recalcitrant pain, and my guess is and I am reading between the lines here because all I have is the medical records here, is that more than 2/3’s of the plantar fascia had been released. And you get calcaneal-cuboid joint pain.” Dr. Hofsommer didn’t read the operative report because if he had he would have seen where it says, “The plantar fascia was dissected free, identified, and released along the medial 50%.” This is labeled # 14.This is also mentioned in the brief on page 7. It doesn’t say complete as he assumed I did. It’s just that he didn’t read the records and not even the operative report to see if I happen to put in it anywhere the percentage of the ligament that was released. It’s still within the SOC even if I had released the entire ligament. That’s the problem with this process; this is not ground for discipline. This isn’t even part of the original complaint. There is no place in the brief where anyone brought up anything about this procedure. There is no place in the record that discusses the percentage of the plantar fascia that should be released. Dr. Hofsommer never really says what he sees as the problem with the Tarsal Tunnel Release although he does say that both the numbness and pain along with the lateral column pain are both common complications of these procedures. What he doesn’t mention and what is in the brief is that both of these problems are usually very treatable. At least the pain is treatable. These are not only mentioned in the brief but there are also references to literature that discusses this fact in detail. Of course all the Board members except Dr. Moen know this. These are fairly basic and well-known problems that we see in our practices, even if we don’t perform any surgery, as is the case with Dr. Deckert. In reference to the lateral column pain this is common after a plantar fascial release and is usually easily treated with orthotics and/or appropriate shoes. This patient did not return for follow up and did not notify me when she started having problems so I never had a chance to help her. This is not part of the complaint. It is in the informed consent that the patient was given. How does Dr. Hofsommer know that Dr. Fanous didn’t treat the Tarsal Tunnel Syndrome symptoms? It doesn’t say anywhere in the record that Dr. Fanous was only treating the Plantar Fascia problem. There is nothing in any literature that says the SOC is that all problems must be treated non-surgically for a period of time. In fact the SOC says that it’s wrong to treat a surgical problem non-surgically.

    

2. Stone:  Agrees with Hofsommer. “My concerns are that from the record on several return office visits postoperatively the patient’s complaint was relative to numbness.”
   The patient was only seen three times postoperatively not several. There was no mention of any numbness on the first post-op visit of 12/21/94. So now we are down to two times so Dr. Stone has fabricated and twisted the information again to make the record into something that it isn’t. If the record is read in totality it sounds much more benign. When she was seen on the next (2^nd post-op visit) she commented that she “is having much less pain and very few problems. (and) is not having any swelling or throbbing. (and) notices some numbness in her heel but it is getting better.” Does this sound like a complaint to you? The last time she was see is on 1/11/95 and at that time she said “(she) is doing fine. (She) has some numbness still of her right heel, however has not experienced any pain.” These are labeled # 15. So let’s take this in context and then look at the brief and the literature cited in the brief. They are both found on pages 4,5, and 6. There it says that numbness after Tarsal Tunnel surgery and even plantar fasciotomy is common and sometimes the desired result. The patient is usually more than happy to have some numbness in exchange for the severe pain that they have when this condition is as bad as it was for Margie Pulkrabek. The three DPM’s on the Board not only know this although once again we have a procedure that is only performed by Dr. Stone, but it is common to have temporary and sometimes permanent nerve damage resulting in pain or numbness from many surgical procedures that are done anywhere in the body. Have you ever had any surgery done? Did you have any numbness? I can absolutely guarantee you that any doctor who has done surgery has had patient’s who have had numbness and that it’s usually transient and gradually resolves however at times it is permanent. This wasn’t part of Dr. Bopp’s complaint although we don’t know for sure if he had a reason to justify a complaint. “ I could find no where in the record of documentation of either pre-operatively or post-operatively telling the patient that this is a potential complication.” Take a look at the progress note from 12/8/94 where it says, “there is a chance of … recurrent heel pain, recurrent ankle pain, or both” and the pre-operative H & P where it says, “the patient understands there is a chance of …  heel pain or neurologic symptoms or both.”  These are labeled #16. “ Secondly, I see no documentation that the nerve conduction was reviewed pre-operatively by Dr. Gale.” There is a note by the RN who was working for me at the time that is handwritten dated 12/5/94. It says “went over results from Dr. Ragland. Dr. Gale suggests one more injection, patient states “they cause cancer and all other kinds of other horrible things.” Patient wants surgery, …” So the patient refused another injection although I wanted to try it and her mind was set to have surgery. Obviously, if my RN reviewed the results with the patient doesn’t this mean that I reviewed them myself first? This is medical records. This is labeled # 17. All of this was reviewed in the brief on page 5. “Nor was there any mention of any pre-operative x-ray findings. Both of those two should be documented at least on one occasion in the pre-operative H & P.” The x-rays were taken by Dr. Fanous who told me that they were normal except for a large plantar heel spur. I realize I didn’t document this conversation but this is a medical records problem if anything. However, I documented the fact that there was a heel spur present in the first progress note on 11/17/94 labeled # 18 as well as in the pre-operative H & P labeled # 16. See the brief and literature review pages 5 and 6 starting with My Analysis.

    

3. Moen: “In reviewing Dr. Gale’s initial visit with the patient in November of ’94, he specifically comments in the plan that “ I told her that before we perform the surgery, that I would like to get a neurologic evaluation by Dr. Ragland to determine if she has any signs of tarsal tunnel syndrome. I told her that if she does we will have to do two procedures, if not, we will only release the plantar fascia. In reviewing the nerve conduction study I don’t think there’s strong evidence to suggest, that there’s any significant changes there that prompted the surgery. I concur that it’s conceivable that she can have Tarsal Tunnel Syndrome without changes on the nerve conduction study. I would submit that if that’s the case it probably doesn’t warrant operative intervention. By his own notes he comments that he wouldn’t yet when he has a normal nerve conduction study proceeded with that procedure anyway. Secondly, I have real concerns in terms of the informed consent if numbness of the lateral heel is a known complication of this surgical procedure I would certainly think it’s a physician’s obligation and certainly a standard of care to discuss that with the patient before hand and there is no mention of that discussion with the patient either pre-operatively or post-operatively.”

    

   The interesting thing from my point of view is that there is absolutely no doubt that the patient needed the Tarsal Tunnel release. There are indications of it being present on the neurologic evaluation and the brief discusses the fact that the nerve conduction can be normal and the patient can still have it and need to have surgery. Brief pages 5, 6 and 7 and references. Many patients who have normal nerve conduction tests go on to have surgery so Dr. Moen’s presumption that if the nerve conduction is normal they probably don’t need surgery is incorrect. Drs. Stone, Hofsommer and Deckert could and should have corrected Dr. Moen but they chose to stay silent. I said in my note quoted by Dr. Moen above that I wanted to get an evaluation (not a nerve conduction) to determine if she has any signs of Tarsal Tunnel Syndrome. I didn’t say I wanted to get a nerve conduction to use that to determine if I would perform this procedure. I said it the way I did because I know that the nerve conduction is often normal and I was looking for EMG changes, which were abnormal as well as Dr. Ragland’s own opinion, which says that the patient does have it. There is a very big difference between these two ways of stating this and Dr. Moen is playing the “devil’s advocate” instead of giving me the benefit of the doubt which is how this process should be approached. Take a look at Dr. Ragland’s letter that I gave you that states all the neurologic changes, which did indicate that Margie Pulkrabek did have it. Dr. Raglund’s evaluation and his letter as well as Dr. Fanous’s letter are labeled # 19. There are many doctors who would have only performed the plantar fascial release and the patient would have then had to have another surgery to relieve her pain. If I would have only done the one surgery, the Board would have determined that I had missed the Tarsal Tunnel diagnosis and disciplined me for it. As far as the informed consent concern of Dr. Moen this was discussed above and is in the pre-operative H & P.

    

4. Deckert: Agrees with the others. Agrees with the others.  
   There is nothing in any of the complaints that say anything about informed consent. For some reason informed consent has become a major focus and this was not an issue in the complaints. In fact this issue was not mentioned anywhere in the briefs. So why has this become an issue now?

 

Shirley Sailer:

1. Stone: “My primary concern was again an intra-operative aspect of the treatment of this patient was that the capital osteotomy that was performed to correct the varus failed to correct the deformity intra-operatively and that was apparent from findings that I had reviewed. And based on failing to recognize that issue intra-operatively my concerns then rests at k. and g. I don’t get a real strong feeling for g. but I feel there is some negligence in the intent of performing this procedure prior to the patient leaving the operating room.”
   Unfortunately, Dr. Stone didn’t take a good look at the pre- and post-operative x-rays. It would be obvious to anyone who is not a doctor that the x-rays are improved before compared to after her surgery. This disagreement is very simple; all you have to do it look at the x-rays. You can measure angles if you want to but I think it’s easier to simply look at the x-rays dated 12/7/95 and 6/19/96. The most important point is that this is a very difficult procedure and that is documented in the brief as well as a study that showed that over 50% of the patients who have surgery for this problem have it reoccur. The length of time between the original procedure and the attempt at correcting the hallux varus deformity is also important. There was over six years between procedures. These are on pages 15-17 and reference #12 of the brief. If 50% of patients have recurrence does that mean that their respective Boards should discipline every one of their surgeons? The reference on page 16 of the brief (reference # 13) specifically states, “Patient satisfaction was dependent on elimination of pain and ability to wear the desired shoe gear comfortably, not on hallux position.” This article also elaborates extensively about how patient satisfaction does not correlate with objective clinical (what a doctor sees) and x-ray findings. That means that if the patient was satisfied as is documented in my record that’s what is most important, although I did tell her that it wasn’t completely corrected and it may worsen again in the future. This is on # 20.

    

2. Moen: I think there is a failure to recognize that the procedure did not adequately correct the problem which subsequently led to the patient’s subsequent problems postoperatively.”
    See the above statements. It did adequately correct the problem. Unfortunately, it didn’t correct it enough to last. There is a big difference between the two statements. If I didn’t get at least some correction it would be worse than if it worsened over the next one to two years after the surgery. Surgery is unpredictable sometimes. If I have an appendectomy done and then a few years later develop problems with scar tissue and adhesions leading to further problems and surgery, is the surgeon who did the appendectomy at fault? I don’t think so. Some of this has to do with the patient’s body and how it responds to surgery. That’s why these cases should not have been complaints and if anything the patient should have gone to a lawyer. The fact is that some of them were told to go to lawyers who then told the patients that they didn’t have a malpractice case because in the lawyer’s opinion nothing was done below the SOC.

    

3. Deckert: Agrees with Moen and “It was noted to the patient that the procedure, that the problem was greatly improved. Also, that I did not feel that he honestly did concur with the patient relative to the complications. I do agree that he did violate some and it’s definitely intra-operatively that violated minimal standards of care.”
   I never told the patient that the procedure was greatly improved. In fact, to the contrary, I told the patient “that there is still mild hallux varus present; however it is improved quite a bit and hopefully it will not worsen at all in the next several months.” That’s on # 20. What complications? There were no complications. Some people just have bad feet and bad luck. I’ve seen much worse from others locally. What was I dishonest to the patient about? See above at the comments for Drs. Hofsommer and Moen.

    

4. Hofsommer: “The procedure itself is a difficult one. I would give that any day because it’s very difficult to perform that. Now my concern is that the procedure was performed, I think there are some technical problems there with the procedure itself. When you look at the post-op x-rays, there is a screw that is evidently loose, didn’t look like it was countersunk.”
   The screw was countersunk. Why wouldn’t I countersink the screw if that were standard for putting in a screw? I have put hundreds and maybe over a thousand screws in patients. It’s true that the screw did loosen but that happens sometimes. Maybe the patient was walking on her foot before she was supposed to and didn’t tell me about it. “The x-rays directly after the surgery did show a second hole where it looked like an attempted screw placement was made. Generally to keep a bone fragment from rotating you need two-point fixation. Normally with the type of osteotomy that you have you can get by with one screw. In this case it didn’t work, the head of the metatarsal ended up rotating. What ended up happening then, the osteotomy site basically did not work, there was some adbuctus of the first metatarsal head. There is an increase in the hallux varus overall from what it had been pre-operatively.” 
   This is a nice theory but it’s wrong. It once again shows that the Board members are not interested in knowing the truth because they wouldn’t simply ask me for an explanation. The second hole is for a pin that holds the bones together in the corrected position while the screw is being inserted. It’s standard procedure. It’s also in the operative dictation, which is labeled # 21. “She definitely had some lesser metatarsal pain afterwards, which was not present pre-operatively.”  It’s very common to have lesser metatarsalgia after this type of surgery. Reference #13 in the brief states, “there was an average of 4.23 mm of shortening. One patient had 6mm of shortening but had an excellent result.” You have to get some shortening any time you cut a bone. How can he say that some pain in the ball of the patient’s foot is reason to take disciplinary action? Did anyone bother to measure the amount of shortening? Dr. Olson’s own x-rays dated 1/18/97, show that the first metatarsal has good purchase. This can be found in the brief on page 17. That means that the bone that I cut during the surgery still carried the weight it was supposed to instead of transferring the weight to the other bones. 

   “Because of that I would have to say in section k. that there is a departure from acceptable podiatric medical practice. In the post-operative notes there are places where it was noted that slight hallux varus is still present then a few weeks later the hallux is rectus. Two weeks after that it’s hallux varus again. I’m not sure if there was a consistency as far as post-op care in documentation of post-operative findings.” 
   This has nothing to do with post-op care. He’s talking about the inconsistency of my notes. This is definitely medical records. He also says I’m not sure. Doesn’t that mean he can’t say for sure so there shouldn’t be any findings of wrongdoing here? It’s true that I said in my record that she “has good surgical correction of the hallux varus deformity”. This is in the objective findings which is what I see when looking at the patient’s foot. It’s different than what is seen on the x-ray. Because on the same day in the same dictation I said in my x-ray report “There is still minimal hallux varus deformity present”. Why would I say two different things in the same dictation if I didn’t mean exactly what I said? I think it would be difficult for anyone to forget that they said something looked “good” then five seconds later say it looked “bad” unless that’s what they meant to say. “I would also say that there was a breech in normal internal fixation (AO/ASIF) if you want to call it that. Because of that, that’s where problems ended up with the performance of the procedure.” See the above discussion about the procedure. There was no “breech”.

    

5. Stone: “I agree with Lee because it is very difficult determine from intra-operative narrative or intra-operative reporting exactly what- you just question truly what has occurred, what has transpired or what’s been documented in that report. Which really makes it difficult but I agree that that is the central issue in this case as to, to the application of appropriate technique and whether there was a complication intra-operative and whether it was acknowledged or was it addressed. Or was it neglected and that’s why it occurred. It really leaves a lot to suspect.”  
   This is addressed above with the second screw theory by Hofsommer that was really a pin. Read the operative report labeled # 21. There was no complication during the surgery. I thought I had corrected it adequately but apparently I should have done more work on it. The idea of doing this type of surgery is to do the minimal amount of surgery that accomplishes the goal. I didn’t think I had to do anything else or I would have done it. If you have so many questions about what really happened why not ask me and see if my explanation is acceptable?

    

6. Hofsommer: “One reason that kind of led me down that track was that second screw hole. There’s no documentation that the far cortex had been stripped so the decision was made not to use the second screw and it was removed. There’s no documentation and I noted it on x-ray.”
     There was never a second screw and there wasn’t a need for one. Some people use two screws, but most use only one.

    

7. Stone: “You take the one step further and I don’t mean to be the Devil’s advocate but if that is the case though it’s hard to prove, that would be willful.”
   The last point I want to make about this case is that there is one area conveniently missing from the discussion of all the Board members. For some reason none of them mentioned informed consent for this case. The reason for that is because I state in the record on two different occasions that “there is a chance of over or under correction or further surgery ”. That can be found in the pre-operative note dated  6/4/96 as well as the pre-operative H & P dated 6/10/96 and these are labeled # 22. She knew very well that this was a difficult problem to correct and that there was a significant chance that she might have this problem and other foot problems associated with it for the rest of her life.

 

Gladys Wright:

 

1. Moen: I think it’s fairly obvious that the implant was procedurally done incorrectly. The argument was made that this happens and when you do operative procedures you’re not always going to have the best result. I think that’s a legitimate argument but what bothered me, what disturbed me is the fact that in his post-operative follow up reports Dr. Gale reported that there was good alignment, good motion which is obviously an incorrect assessment on his part. I think that the inability to recognize the poor post-operative result is below the standard of care and therefore a violation of section k.”

    

2. Stone: Agrees with Moen. “This is a difficult procedure and certainly fraught with various complications. However, my concern is that the intra-operative technique and placement of the implant failed to meet standards of care or recognition of such fails to meet standards of care and the post-operative assessment of that failing to recognize it even post-operative even brings more concern to me. And based on those two I would again go with items k. minimal standards.”

    

3. Deckert: “I also have documented that in the initial appraisal that Dr. Gale apparently did not recognize the post-op problem and in lieu of that was unable to apparently adequately explain it to his patient then. This violated the minimal standard of care.”

    

4. Hofsommer: “There were technical problems with the placement of particularly the proximal phalangeal component. This was identified in his notes but as far as that goes was never addressed. I don’t think also that Dr. Gale entertained the idea that there could be either loosening of the implant or something wrong with the implant. Postoperative follow up looking at the x-rays from 11/7/96 you definitely see changes from the one on 7/17/96. There were also x-rays taken 1/20/97 which definitely show loosening of one component of the implant itself. I had taken these radiographs to an independent radiologist who does review orthopedic cases and I asked him what do you see? And he talked about alignment of the proximal phalanx. He also said it looks like it’s starting to loosen up there. He said it’s getting a little radio lucent around the base. He said other than that I don’t see much of anything else. So just in and of itself I think there is the failure to recognize a complication of the procedure itself. There’s also further x-rays taken. The films dated 3/18/97 really demonstrate loosening. Plus you can see where it’s punctured through the plantar cortex of the proximal cortex itself. Changes like that obviously there’s something going on. It can be argued that she left care before he could fully address the problem. However, there was no mention before she left Dr. Gale’s care  that those problems were even identified or a possibility of them even being entertained. It concerns me because this is a difficult procedure. One with known complications. Whether it’s a knee or a hip. Any type of an implant. They can loosen. If there’s poor bone stock or whatever. In postoperative notes there was also problems with documenting exactly as least what I saw was on x-ray what was going on. Because of that I’d have to lead towards k. both in the performance of the procedure and in the postoperative care that was given. The indications for the procedure are fully met.”

    

5. Stone: My concern was the last portion of what Lee brought forth was that there was a series of x-rays that were taken. I’m not sure if they were reviewed at all or if they were reviewed and there was just failure to observe the changes. Two concerns I have. This may represent to me that there was carelessness and negligence to study and identify pathology on the sequence of the subsequent x-rays. That additionally placed the patient at additional exposure to radiation that may or may not have been necessary.”

   I’ll address all of these issues for Gladys Wright at once here. The fact that the implant was tilted in the proximal phalanx was not causing her a problem at least while I was treating her. I did document that it was tilted in the notes dated 7/17/96 and on 11/7/96. Labeled # 24. I didn’t think this was of any consequence so the patient didn’t have to be told about it which is what I stated in my x-ray report. Other than the tilt in the proximal phalanx the alignment was excellent. The range of motion for this type of procedure was very good as well. This has to be compared to the pre-operative situation where there was very little motion. This is also well documented in Dr. Hart’s initial assessment. The joint alignment of the implant was correct. There is no definitive evidence that the implant was loose. Dr. Hofsommer and Dr. Stone should not be allowed to take these x-rays and have them evaluated by a radiologist because this is not part of the record. These radiologists do not routinely evaluate this type of implant and there are differences between the knee and hip implants compared to this type of implant. There is a difference of appearance on some of the x-rays but that’s do to remodeling of the bone at the edges which is normal and due to the difference in the angle of the x-ray positioning. There was an abundant amount of evidence in the record explaining why it is very unlikely that the implant was loose. As far as Dr. Hart’s record it’s very inconsistent. The patient’s own evaluation at Dr. Hart’s clinic states things like “no limitation of any recreational or daily activity”. Labeled #25 and on page 14 of the brief. Dr. Hart states in his notes that the post-op x-rays look excellent but Dr. Expert thinks they’re terrible. Page 14 of the brief. So why should the Board members believe Dr. Hart instead of me. We all know that the x-rays were necessary and that there is little if any radiation exposure from foot x-rays. The patient had improvement with a strapping and may have done quite well with just a custom orthotics. The last thing that’s important to mention here again is the informed consent. Why can it only work against me and not in my defense? The record clearly shows that the patient was told that she may need further surgery including a different joint replacement or a joint fusion along with other possible complications. Labeled #26.

    

6. Stone: If one holds him or herself out to be an expert and advertises himself as an expert in their field of training and there is this pattern that is at least thought to be demonstrated as in this particular case, does that or is that indicative of deception? Can that be proven before or can it be made after this study? If the individual, he or she on their own accounts do not feel that there is a pattern that has been established in his or her practice to the negative and yet him or herself out as an expert by advertising as a specialist in a particular field. Where is the line drawn on that individual actually deceiving the public? 

    

7. Deckert: Doesn’t think there is a problem with public safety.

    

8. Hofsommer: Disagrees with Deckert. If you got five cases where we have felt there has been a breech of either standard of care or there’s other issues revolving around, either the patient’s heath or well being or the performance of procedures, and yet feel that there’s no harm to public safety. What’s harm to public safety? Somebody dying? Or risk of intra-operative complications? I would say that there was definitely, there is harm to the public. If the cases in which we reviewed demonstrate performance problems, we see problems, whether it’s medical records. It all deals with patient care. And the patient’s are public. I would maintain that there is an issue there of harming the public.

    

9. Stone: I agree with Dr. Hofsommer. I feel that there is a concern. Because after reviewing these cases and this discussion this evening I know in my mind that I would have a difficult time going to sleep tonight wondering if there was going to be any other harmful effects as this pattern has presented. I agree there is definitely a concern of public safety.

    

10. Moen: I agree that there is concern for public safety. I don’t think that the conduct was deceptful or fraudulent. I’m not convinced that the conduct is intentional. But I do feel that there is concern with public safety due to the conduct. 
    

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Give me a break, guys. I didn’t kill my wife, have sex with a patient or molest a minor. I wasn’t doing multiple drugs while performing surgery and I didn’t break any other laws or commit any other crimes. That’s what it means to be a harm to the public.