Articles & Updates

"ER Docs Did The Right Thing In Toe Case, Jury Finds"

"ER Docs Did The Right Thing In Toe Case, Jury Finds" - January 8, 2018
by David Baugher - Missouri Lawyers Weekly

A St. Louis County jury has rendered a defense verdict in a malpractice suit stemming from the amputation of a construction worker’s big toe after he errantly discharged his nail gun.

“He presented to the ER and our position is that our ER doc did an appropriate workup,” said defense attorney Stephanie Preut of Evans & Dixon in Overland Park, Kansas.

Her firm represented Emergency Physicians of St. Louis in a suit filed by Eric Betzold, who was injured after accidentally driving a nail into the digit while at work. The wound from the November 2010 mishap developed an infection and, after irrigation and debridement efforts, the toe was removed, according to his filed petition.

Preut, who assisted lead attorney Brian J. Niceswanger, said much of the case centered on the nail’s interaction with the bone.

“The radiologist who read the X-ray while the nail was still in the toe clearly stated that it did not go through the bone,” she said. “But on the X-ray after the nail was removed, you had some language that, according to the plaintiff’s ER expert, was vague and indicated that it did go through the bone.”

However, Preut said the radiologist who read that second X-ray gave deposition testimony indicating it did not go through the bone.

Gonzalo Fernandez of Devereaux, Stokes, Fernandez & Leonard, which represented the plaintiff, disagreed, saying that the second radiologist’s testimony did not rule out contact with the bone. He instead allowed that such contact may or may not have happened, though that radiologist could not recall exactly what he meant by the language he used in the previous report.

Fernandez argued that the nail made contact with the bone and that a specialist, such as a podiatrist or orthopedic surgeon should have been consulted. He said his expert opined that interaction with the bone was obvious by looking at the pictures and an irrigation and debridement should have been conducted quickly to prevent infection.

“You don’t even need the X-rays,” Fernandez said. “If you are in the emergency room and you have any suspicion of a contaminated object having contact with the bone, then you need to call in a surgical consult. They didn’t do that.”

Betzold was treated with antibiotics and pain medication and released. As per instructions, he visited his primary care physician days later and was referred to a podiatrist.

Preut said there were initially no signs of complications.

“We maintained that the patient didn’t have any sort of infection until the end of December or January, which further removed it from the ER care,” she said, noting that he continued to suffer problems into that spring.

Fernandez said his side contended that the infection went straight to the bone rather than progressing from the tissue, that it showed few outward problems initially and that the time element was to be expected.

“It is slow-growing. It is not like some infections that progress very quickly,” he said. “The window, the timing of it, I think, lined up with our theory of the case.”

Various physicians, including the radiologists, were initially named in the suit however Preut said only the claims against the emergency doctor group went to trial.

She said she felt the bone issue was the key point for the jury.

“They wanted to see a blow-up of one of the X-rays and they also wanted to see the deposition transcript of one of the radiologists we read into the record,” Preut said.

Brian Stokes of Stokes Law Office in St. Louis was also listed as representing the plaintiff but he deferred comment to Fernandez.




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