Medical Malpractice Lawsuit Over Cartiva Toe Implant Surgery Allowed To Proceed

A Michigan appeals court has cleared the way for a medical malpractice lawsuit to move forward over complications following Cartiva toe implant surgery, involving allegations that a doctor used the device even though it was medically inappropriate for the plaintiff.

The complaint was originally filed by Eugene Perez in December 2019, involving claims against Dr. Joshua Faley, Michigan Foot and Ankle, P.C., William Beaumont Hospital, and Drs. Daniel Peterson and Jacob Meisenburg, indicating that the medical providers breached the standard of care by recommending a Cartiva implant to treat his big toe pain, since the device was just recently introduced in the United States and featured a flawed design, which was not appropriate treatment for his condition, known as hallux rigidus.

The Cartiva toe implant is a molded cylindrical device made of polyvinyl alcohol-based hydrogel (PVA), which has been promoted over the past few years as a revolutionary treatment alternative for arthritis in the big toe, which causes severe pain and often results in the need for a toe fusion surgery. However, concerns immediately surfaced about risks associated with the device, and there have been reports of high failure rates with the big toe implant, leaving patients with increased pain, loosening, fracture and Cartiva surgery complications.

Often these complications result in the need for a big toe fusion surgery, which leaves the patient with permanent disability, and a number of product liability lawsuits over Cartiva implants have been filed against the device manufacturer over the past year.

Unlike most other Cartiva toe implant lawsuits brought against the manufacturer for selling a defectively designed product, Perez pursued his claim as a medical malpractice lawsuit against the doctors and medical providers who recommended and performed the toe implant surgery.

Cartiva Implant Medical Malpractice Claims

Perez indicates that he sought treatment with Dr. Faley after experiencing pain in both big toes, which was previously diagnosed as hallux rigidus (stiff big toe) and gastrocnemius contracture by a different orthopedic surgeon, who had recommended a Strayer procedure or toe fusion surgery. Dr. Faley recommended that Perez undergo a joint cheilectomy to relieve the big toe joint pain, involving the removal of bone spurs and tissue, and placement of a Cartiva implant to improve joint motion.

Dr. Faley performed the Cartiva toe implant surgery on Perez’s right big toe in late August 2017, and a second surgery was scheduled to implant Cartiva in his left foot in mid-December. However, by mid-September 2017, and into November 2017, Perez experienced pain under the ball of his right foot, difficulty pushing off and limited range of motion in his right big toe.

Following multiple additional surgeries, including surgical correction of the Cartiva implant in his right toe and continued implant of Cartiva in his left foot, it was ultimately determined that Perez would need arthrodesis surgery.

In November 2019, a different doctor removed the Cartiva implant, and performed a toe fusion and Strayer procedure that had originally be recommended. At that time, the new surgeon noted that the Cartiva implant has “sunk essentially into the shaft of the metatarsal.”

Sufficient Evidence Presented to Support Malpractice Lawsuit

Perez filed the Cartiva implant malpractice lawsuit against Dr. Faley and other defendants, presenting claims for medical malpractice, assault and battery based on a lack of informed consent and negligence under a theory of res ipsa loquitur.

Faley and Michigan Foot and Ankle, P.C. filed a motion seeking to dismiss the lawsuit in October 2021, claiming Perez’s theory of causation was not supported by admissible evidence, meaning he would not have the evidence to win in a court trial. A lower court ruled in Perez’s favor, leading defendants to petition the Michigan Court of Appeals for a ruling.

In an opinion (PDF) issued on February 2, the state appellate court affirmed that Perez had presented sufficient expert testimony from a board-certified podiatrist, Dr. Sheldon Goldstein, to justify allowing the case to move forward and for a jury to consider the evidence.

“Defendants first argue that Dr. Goldstein’s testimony regarding the standard of care and whether Dr. Faley’s use of the Cartiva implant breached that standard of care was unreliable and, therefore, was inadmissible,” the opinion states. “We disagree.”

Dr. Goldstein offered expert testimony that the implant’s design was flawed, since it did not have support to anchor it into the bone and prevent it from moving. He also testified that the Cartiva surgery was not advisable for Perez because he had a specific condition, gastrocnemius equinus, which would increase the risk of complications with a Cartiva toe implant, causing it to loosen because of additional load on the joint from the condition.

The Michigan Court of Appeals determined that the Cartiva implant malpractice lawsuit involved questions for a jury to decide, finding that the trial court erred in denying the motion for summary disposition.