Lawyers at DBMS successfully litigate a wide variety of civil cases and argue appeals in some of the most challenging jurisdictions in the country.

Professional Liability

McCarthy v. Defendant Podiatric Surgeon and University Hospital


Defendant Podiatric Surgeon and University Hospital


Verdict in Favor of the Defendant


On February 19, 2013, a Cook County jury returned a verdict in favor of the firm’s client, a podiatric surgeon and university hospital represented by DBMS.

In June 2008, the plaintiff, 59, presented to the podiatrist, complaining of right great toe pain. The podiatrist diagnosed the plaintiff with hallux rigidus of the right foot, and recommended fusion of the first MTP joint. The plaintiff was upset with the possibility of fusion surgery because of her active lifestyle. For that reason, the podiatrist discussed options that might save the joint.

Ultimately, the plaintiff agreed to proceed with a cheilectomy with interpositional arthroplasty using an equine collagen graft. The plaintiff underwent that procedure in November 2008 without complication. The defendant charted in his office note of September 2008 that the procedure was documented in medical literature as being an effective method of treating the plaintiff’s condition.

In March 2009, the plaintiff returned to the defendant complaining of increased swelling in her right great toe. X-rays showed demineralization of the bone stock of the right first metatarsal head. After an infectious cause was ruled out, it became apparent that the plaintiff had suffered a foreign body reaction to the equine collagen graft. For that reason, a second surgery was performed to remove the equine collagen graft and debride the surgical site. As a result of the surgical complication, the plaintiff was left without motion in the right great toe joint and shortening of the right great toe of approximately 1 ½ cm. Thereafter, the plaintiff developed clawing of the lesser toes secondary to load transfer issues. The plaintiff declined further surgical intervention.

The plaintiff alleged that the defendants negligently recommended and performed a cheilectomy with interpositional arthroplasty using an equine collagen graft, and negligently failed to obtain appropriate informed consent. The plaintiff’s expert testified that the procedure fell below the standard of care because there was no “scientific basis” in the medical literature to use the equine collagen graft in the manner it was used.

The defense argued that the podiatrist’s care and treatment was entirely appropriate and within the standard of care in all respects. The plaintiff developed a foreign body reaction to the equine collagen graft, which is an unfortunate but well-recognized risk of the procedure. Both the defendant and the defendant’s expert testified that it was not below the standard of care to use a surgical technique in the absence of prior support in the medical literature, for if the plaintiff’s expert was correct in that regard, there would never be advances in medicine.

The defendant and the defendant’s expert also testified that plaintiff’s expert was incorrect that there was no prior support in the medical literature for using an equine collagen graft as an interpositional device at the first MTP joint, as use of an equine collagen graft in that fashion was specifically discussed in the February 2008 supplement to the McGlamry textbook published by the Podiatry Institute nine months before the surgery performed by the defendant on the plaintiff.

In closing argument, plaintiff’s counsel asked the jury to award $600,000. After 90 minutes of deliberation, the jury returned a verdict for the defendants.