An often-encountered scenario in a workers' compensation or personal injury setting involves a diabetic claimant or plaintiff who sustains a blunt-force trauma or laceration injury to his or her foot or a toe. The blunt-force trauma or laceration injury many times begins as a minor trauma and then progresses to pressure necrosis (and ultimately gangrenous changes), osteomyelitis, acute infection and then amputation of the toe or foot.
While this might seem like an obviously causally related condition, the defendant in a personal injury action will almost always dispute causal relationship. In so doing, the defendant will hire a medical expert who will testify that the diabetes is the sole cause of the amputation and that the so-called traumatic event was incidental to any amputation undergone by the claimant or plaintiff. In order to effectively cross-examine the defense medical witness presenting this testimony, there are several important points critical to the plaintiff's arguments.
At the outset, the plaintiff's attorney needs to be aware of certain truths, misconceptions and terminology as they relate to the diabetic plaintiff or claimant. It is true that an individual with diabetes is otherwise susceptible to a difficult recovery from any trauma, especially a trauma to a peripheral body part such as a hand or foot. Any defense medical witness will concede that the medical literature supports this proposition.
With respect to our scenario presented above, despite the diabetic plaintiff's propensity to a difficult recovery, the defense medical examiner will attempt to assert that irrespective of any trauma, the claimant or plaintiff is inevitably susceptible to osteomyelitis (bone infection) resulting in amputation. This assertion is a misconception. There is no medical literature to support the proposition that, absent some triggering event, a diabetic patient holds such susceptibility.
In 1999, a group of doctors published an article titled "Lower Extremity Amputation in Diabetes: The Independent Effects of Peripheral Vascular Disease, Sensory Neuropathy and Foot Ulcers." The article, which appeared in the peer review journal Diabetes Care and is endorsed by the American Diabetes Association, examined the risk factors for lower-extremity amputation in diabetic patients.
While the article did not study trauma and trauma's relation to lower-extremity amputation, it established that diabetic patients are not an amputation waiting to happen as the defense medical examiners would have the fact-finder believe. To the contrary, it is a truth that millions of diabetics live a full life and never experience amputation.
It is true that blood flow is not as great in diabetic patients and that patients with uncontrolled diabetes (high sugar levels) are more susceptible to infection. It is also true that diabetic patients are prone to suffer from peripheral neuropathy (lack of normal sensation in the extremities). While these truths can be framed to benefit either side, generally speaking, if there is credible testimony of the initial trauma, these truths will benefits the claimant or plaintiff's forensic causation analysis.
With respect to terminology, often-used terms in this setting include fibrosis, pedal pulses, diminished sensation, pressure necrosis and osteomyelitis. Fibrosis is the reaction of cells to the healing process. In the trauma setting, it is commonly interchanged with scarring. Pedal pulses is essentially taking the pulse at the area of the foot and ankle rather than at the area of the hand and wrist, as typically seen in television shows. Diminished sensation is lack of normal sensation in the extremities, commonly characterized as the peripheral neuropathy referenced earlier.
The most important term to understand is osteomyelitis or, in this circumstance, acute osteomyelitis. Acute osteomyelitis is the clinical term for a new infection in bone. Many times the defendant will focus on medical literature that suggests that diabetic patients can come about this infection hematogenously through a problem with the blood. While this is true, particularly in children, in adults, osteomyelitis is usually a subacute or chronic infection that develops secondary to an open injury to bone and surrounding soft tissue. The plaintiff's attorney needs to learn the three common ways osteomyelitis occurs and be able to argue the predominance of osteomyelitis in the post-traumatic setting. The plaintiff's attorney also needs to be able to counter the argument that a blunt trauma, which does not break the skin, is not sufficient to cause osteomyelitis. This is simply not true. A bruise is by nature bleeding — it is just bleeding under the skin, so a laceration is not necessary to make the causal connection. For a more complete understanding of the terminology, I recommend an article that appeared in one of the Oxford medical journals titled "Controversies in Diagnosing and Managing Osteomyelitis of the Foot in Diabetes."
Another aspect to our common scenario that I mentioned earlier is that the plaintiff's pain is many times not severe in the early stages and the plaintiff will even try to walk it off. Under this scenario, the plaintiff experiences a gradual increase in his or her symptoms, developing sometimes days or weeks after the initial trauma. When encountering that scenario, it is critical to stress that in the setting of sensory neuropathy, there is diminished perception of pain and temperature; thus, many patients are slow to recognize the presence of an injury to their feet.
Brandon Swartz is a founding partner of Swartz Culleton. His practice focuses on all types of personal injury cases, including wrongful death, medical malpractice, civil rights violations, motor vehicle, premises liability, products liability, trucking accidents and workers' compensation.