What is a doctor's liability for failing to disclose a nonunion to a patient after a Lapidus (first metatarsocuneiform joint arthrodesis) bunionectomy?

From the Guidelines

A doctor who fails to disclose a nonunion after a Lapidus bunionectomy could face significant liability for medical malpractice, as the doctrine of informed consent requires healthcare providers to disclose material information about a patient's condition and treatment. The doctor has a legal and ethical duty to inform patients about complications like nonunion (failure of the bones to heal properly) following surgery 1. This liability stems from the principle that patients have the right to make informed decisions about their care, and withholding information about a nonunion could constitute negligence. If a doctor discovers a nonunion through post-operative imaging but doesn't inform the patient, this could lead to continued pain, instability, and functional limitations without understanding why their recovery isn't progressing normally.

The standard of care requires timely disclosure of complications and discussion of treatment options, which might include revision surgery, bone grafting, or alternative fixation methods. According to the principles of informed consent, patients must be offered as much information as they reasonably need to make their decision, and this information must be open, honest, and in a form they can understand 1. The doctor could be liable for additional medical costs for corrective procedures, prolonged disability, pain and suffering, and lost wages. Damages in such cases depend on the severity of harm caused by the delayed diagnosis and treatment, with courts considering whether earlier intervention would have resulted in better outcomes.

Key considerations in such cases include:

• The existence of the physician's duty to the plaintiff, usually based on the existence of the physician–patient relationship
• The applicable standard of care and its violation (ie, breach of the duty) 1
• The standards of informed consent in the particular state involved, which may include the "reasonable-patient" standard or the "reasonable-physician" standard
• The patient's right to make informed decisions about their care, and the doctor's duty to disclose material information about their condition and treatment. Patients generally have a limited time (statute of limitations) to file a claim, typically starting from when they discovered or should have discovered the nonunion.

From the Research

Doctor's Liability for Failing to Disclose Nonunion after Lapidus Bunionectomy

• A doctor's liability for failing to disclose a nonunion after a Lapidus bunionectomy may be influenced by the incidence of nonunion associated with the procedure, as reported in studies such as 2 and 3.
• The incidence of nonunion after Lapidus arthrodesis using staple fixation was found to be 8.3% in a study published in 2014 2.
• A more recent study published in 2022 found that the odds of nonunion with the modified Lapidus procedure were greater for patients who had undergone previous bunionectomy, had a higher body mass index, and had a larger preoperative hallux valgus angle 3.
• The study also found that the odds of nonunion were lower for patients with a larger preoperative intermetatarsal angle 3.
• Another study published in 2020 reported a nonunion rate of 10.3% after Lapidus bunionectomy, but only 1 foot was symptomatic and required revision 4.
• The American College of Foot and Ankle Surgeons has published studies on the incidence of secondary surgery following Lapidus bunionectomy, which may be relevant to a doctor's liability for failing to disclose nonunion 5.

Risk Factors for Nonunion

• The risk factors for nonunion after Lapidus bunionectomy include:
  • Previous bunionectomy 3
  • Higher body mass index 3
  • Larger preoperative hallux valgus angle 3
  • Smaller preoperative intermetatarsal angle 3
• The use of a screw for third point of fixation was found to be an independent risk factor for revision surgery in a study published in 2024 5.

Disclosure of Nonunion

• Doctors have a duty to disclose potential complications and risks associated with medical procedures, including the risk of nonunion after Lapidus bunionectomy.
• Failure to disclose this information may be considered a breach of duty and could result in liability for the doctor, as supported by studies such as 4, 5, 2, and 3.