Foot and Ankle Expert Witness Services

Dr. Tom Biernacki, DPM, FACFAS is a practicing foot and ankle surgeon who serves as a podiatry expert witness for attorneys nationwide, on both the plaintiff and the defense side. Podiatric malpractice record review, standard-of-care and causation opinions, independent medical examinations, affidavits of merit under MCL 600.2912d, and deposition and trial testimony.

Full details of scope, fees, engagement terms and case types are on the dedicated medico-legal site: PodiatryMedLegal.com.

Why an actively practicing surgeon

The first question a retired expert struggles with on cross-examination is when they last performed the procedure at issue. I still see these patients every week and still operate, across two Michigan locations. That is not a marketing line, it is the difference between an opinion that survives cross and one that does not.

It also matters for admissibility. Michigan’s expert witness statute, MCL 600.2169, requires that during the year immediately preceding the occurrence the expert devoted a majority of professional time to the active clinical practice of the same health profession as the defendant — and, where the defendant is a specialist, that specialty — or to instructing students in an accredited health professional school or residency program, or to both. Many states impose a comparable requirement. An expert who has retired into full-time consulting satisfies neither branch, and can fail that test before the opinion is ever heard.

Why a podiatric surgeon, specifically

Podiatric medicine is a separate licensed health profession from allopathic and osteopathic medicine, with its own schools, licensing board and certifying boards. In states that require the expert to match the defendant’s specialty, an orthopedic surgeon offered against a podiatrist defendant faces an objection that no amount of surgical skill answers.

The reverse is equally true, and I decline cases on that basis. If the defendant is an orthopedic surgeon, you need an orthopedic surgeon. A struck expert is worse for your case than no expert at all.

What Michigan requires of a podiatric expert

Michigan is stricter than most states about who may testify against a podiatrist, and it is worth settling before an affidavit of merit is signed rather than after. The Court of Appeals has addressed it directly.

Dr. Gilyard, as an orthopedic surgeon, was clearly not a qualified standard-of-care expert witness under MCL 600.2169 because Dr. Kissel is a podiatrist.

Jordan v Kissel, Mich Ct App, Docket No. 359792 (18 May 2023), n 3 — unpublished

That is Jordan v Kissel, unpublished per curiam opinion of the Court of Appeals, issued 18 May 2023 (Docket No. 359792), at note 3. Two caveats worth stating plainly: it is unpublished, and so not binding precedent under MCR 7.215(C)(1), and the holding sits in a footnote without extended analysis. It is nonetheless the only Michigan appellate statement on the question, and it treats the answer as obvious. The same opinion polices the boundary in the other direction, holding that a podiatrist was not in the same health profession as a physician’s assistant.

What changed in July 2024

If your authority on Michigan expert qualification predates July 2024, check it. Woodard v Custer governed for eighteen years and required the expert to match the defendant’s subspecialty. In Stokes v Swofford, 514 Mich 423 (2024), the Supreme Court overruled that in part: matching runs to the general board certification rather than the subspecialty beneath it. The Court also directed that a trial court must ensure an expert who qualifies under MCL 600.2169(1) also meets subsection (2), and confirmed that subsection (3) gives trial courts broad discretion. The contest moved from whether the credentials match to whether the testimony fits.

Why that may not decide a podiatry case

Read the holding’s first clause, though. The Court held “with respect to medical malpractice claims filed against physicians,” and defined specialty by reference to “umbrella-based physician certifying entities” — the American Board of Medical Specialties, the American Osteopathic Association and the American Board of Physician Specialties. A Michigan podiatrist is licensed under Part 180 of the Public Health Code, not as a physician, and ABFAS and ABPM are recognized through the Council on Podiatric Medical Education rather than any of those three.

Michigan has never applied the statute to a podiatric defendant in a published decision, and what it has published cuts the other way. Jalaba v Borovoy, 206 Mich App 17 (1994), holds that a podiatrist is not a specialist under MCL 600.2912a, and an unpublished 2023 panel decision, Perez v Faley, DPM, said the same: in Michigan, podiatrists are considered general practitioners rather than specialists. Being unpublished it binds no one under MCR 7.215(C)(1), so it persuades rather than controls. If that reading carries across, subsection (1)(c) governs instead — and it requires no specialty matching and no board certification, only a majority of professional time in active clinical practice. Both cases construe the standard-of-care statute rather than the qualification statute, so it is an argument rather than a holding, and counsel should expect to brief it rather than cite it.

Three mechanical traps

• The clock runs backward from the occurrence, not from trial. Subsection (1)(b) measures the year immediately preceding the alleged malpractice, so an expert’s practice today is not the question.
• “Majority” means more than half. In Kiefer v Markley, 283 Mich App 555, 559 (2009), thirty to forty percent of professional time was not enough.
• Board certification is measured at the occurrence too — Rock v Crocker, 499 Mich 247 (2016) — while licensure is measured at the time of testimony.

What genuinely remains unsettled is whether a podiatrist is a “specialist” under the statute at all, and no published Michigan decision has applied MCL 600.2169 to a podiatric defendant. Counsel should run their own analysis. This is how a practicing podiatric surgeon reads the qualification landscape, not legal advice.

The Michigan pre-suit sequence, from the expert’s side

Michigan’s pre-suit machinery decides when an expert has to be involved, and counsel who bring one in late tend to discover that the hard way. The notice of intent under MCL 600.2912b must state the applicable standard of care, the manner in which it was breached, what should have been done instead, and how the breach proximately caused the injury. Four of its six required elements are things only a physician can supply. That is a merit review whether or not anyone calls it one — and it happens 182 days before a complaint can be filed.

The affidavit of merit under MCL 600.2912d then has to be signed by a health professional the plaintiff’s attorney reasonably believes meets the qualification requirements above. Identify the defendant’s licensure before retaining the expert, not after: a case naming a podiatrist, an orthopedic surgeon and a physician’s assistant may need three separate affiants.

Where affidavits actually fail

The causation element is the one that sinks them. In Ligons v Crittenton Hospital, 490 Mich 61 (2011), the Court held it insufficient to state the result where the statute required the manner of the breach. In a diabetic limb-salvage case that distinction is the entire affidavit. “The delay caused the amputation” is a conclusion. What the statute wants is the chain: what the examination should have found and on which date, what that finding should have triggered, whether the tissue was still salvageable at that point, and what the delay cost in level of amputation. That is a clinical narrative, and it takes a clinician to write it.

One thing that changed in 2023

If your checklist still says a missing affidavit is fatal to the limitations period, it is out of date. Scarsella v Pollak governed that for twenty-three years and was overruled in Ottgen v Katranji, 511 Mich 223 (2023): filing an affidavit is not what commences the action or tolls the period. Non-compliance can still get a case dismissed — it simply cannot be dismissed on statute-of-limitations grounds. A defective affidavit, as distinct from an absent one, is still governed by Kirkaldy v Rim, 478 Mich 581 (2007), where the remedy is dismissal without prejudice.

None of that is legal advice and counsel will have their own view of it. It is the sequence I plan around, and the reason an early conflict check is worth more than a rushed opinion late.

What survives a challenge to the opinion

Qualifying under the statute is necessary and not sufficient. An expert who matches the defendant’s specialty can still be excluded because the opinion itself is unreliable or unhelpful — and since Stokes revived MCL 600.2169(2) and (3), that second gate carries more weight than it used to. The contest has moved from whether the credentials match to whether the testimony fits.

Michigan adopted the Daubert framework in Gilbert v DaimlerChrysler Corp, 470 Mich 749 (2004), and MCL 600.2955 codifies the reliability factors: whether the opinion has been tested, whether it has been peer-reviewed and published, its known error rate, general acceptance in the field, and whether it is relied on by experts outside of litigation. That last factor is the one that separates a clinical opinion from a litigation opinion, and it is worth putting to any expert directly.

What Danhoff settled in 2024

A recurring defense motion argues that a standard-of-care opinion unsupported by peer-reviewed literature must be excluded. In Danhoff v Fahim, 513 Mich 427 (2024), the Supreme Court held 5–2 that supporting literature is not always mandatory: it is one reliability factor among several, and its absence does not automatically render an opinion inadmissible. Read that as a clarification rather than a license — the trial court must still be satisfied the opinion rests on a reliable basis, and an opinion anchored in published evidence stays markedly harder to exclude and harder to cross-examine.

Where foot and ankle opinions get into trouble

• Retrospective certainty about perfusion. In a limb-salvage case it is tempting to say earlier revascularization would have saved the foot. Whether it would have depends on perfusion at the time, and where the record holds no ABI, no toe pressures and no angiogram, that is an inference from absence. It can sometimes be defended; stated as a certainty it invites the motion.
• Treating a recognized complication as a departure. Non-union, transfer lesions, hardware failure and nerve irritation all follow competently performed surgery. An opinion that treats a listed complication as proof of negligence, without identifying what was done differently from the standard, is vulnerable on relevance as much as on reliability.
• Preference dressed as standard. Where two techniques are both in general use, an opinion that one was required describes the expert’s preference, not the standard. This is the most common reason I decline a case counsel expected me to support.
• Applying today’s standard to yesterday’s care. The standard is the one in effect at the occurrence, and both the literature and the hardware move.

How to check a podiatric expert’s credentials, including the other side’s

Nearly every first call includes some version of the same question: what a DPM actually is, and whether the degree holds up in front of a jury. It is a fair question and it has a checkable answer. Below is what the training consists of, and the four checks worth running on any podiatric expert — mine, or the one retained against you.

What the degree and the training actually are

A Doctor of Podiatric Medicine completes four years of podiatric medical school at a college accredited by the Council on Podiatric Medical Education, then a hospital-based surgical residency. Since 2013 every CPME-approved residency has been a minimum of three years — 36 months. Programs are designated PMSR or PMSR/RRA, and CPME states that the only difference between them is the volume of required foot and ankle surgical cases and Reconstructive Rearfoot/Ankle procedures. That distinction matters when a case turns on rearfoot or ankle reconstruction rather than forefoot work.

Two consequences are worth knowing before you rely on anyone. An expert who trained before 2013 may have completed a one- or two-year residency, because the three-year minimum did not yet apply. And board certification is a separate thing again from both residency and licensure: the American Board of Foot and Ankle Surgery certifies in Foot Surgery and in Reconstructive Rearfoot/Ankle Surgery, while the American Board of Podiatric Medicine certifies in podiatric orthopedics and primary podiatric medicine. The two boards are not interchangeable, and neither is the same as being board qualified or board eligible, which are real statuses but are not certification.

Four checks, all free, none of them slow

• The Michigan license. LARA’s public verification confirms a current, unrestricted license under Part 180 and shows any disciplinary action.
• ABFAS certification. The ABFAS Find a Surgeon search is public and free, searchable by name or by city and state, and it reports the certification type and the status. Watch for Surgically Inactive — a diplomate who no longer operates. On an opposing expert who presents himself as a practicing surgeon, that status is the first thing to look for.
• The NPI record. The NPPES registry is free and confirms the taxonomy the expert actually bills under, which is a harder fact than a description on a CV.
• Time in practice. MCL 600.2169(1)(b) requires the majority of professional time in active clinical practice or in teaching, during the year before the alleged malpractice. Ask directly what proportion of the expert’s working time is now litigation. It is a fair question to put to me as well.

Two routes are often suggested and are worth skipping for a first look. ABFAS primary-source verification sits behind a credentialers-only login, and ABPM charges a fee for every verification order, including orders that return no record. Neither is a quick public lookup. The four checks above are, and between them they answer the question.

Cases I review

• Bunion and forefoot reconstruction — malunion, transfer lesions, hallux varus, hardware failure
• Diabetic foot ulceration, osteomyelitis and amputation causation, including delayed diagnosis
• Ankle fracture management — fixation failure, missed syndesmotic injury, post-traumatic arthritis
• Peroneal nerve injury and foot drop following surgery or casting
• Charcot neuroarthropathy and limb salvage
• Wound care, offloading and vascular referral timing
• Elective surgery consent and indication disputes
• Nail and soft-tissue procedures, including office-based podiatric care
• Scope-of-practice questions arising from podiatric licensure

What Michigan licenses a podiatrist to do

Scope of practice sets the outer edge of the standard of care, and it is worth settling early because it can decide a case on the law before anyone reaches the medicine. An opinion faulting a podiatrist for failing to do something the license never authorized is wrong at the threshold. So is a defense that treats a procedure as beyond the license when the statute plainly reaches it. Michigan draws the boundary in MCL 333.18001(1)(f) and (g), and it is unusually specific about anatomy.

The evaluation, diagnosis, management, and prevention of conditions of the lower extremities may include osseous and soft tissue procedures that address the pathology of the foot, ankle, and the contiguous attachments below the tibial tuberosity.

MCL 333.18001(1)(f)(i)

Two anatomical lines, at two different heights

The statute sets the reach of the license and the ceiling on surgery at different levels, and conflating the two is the common error.

• The tibial tuberosity is the reach. Osseous and soft tissue procedures addressing the pathology of the foot, ankle and the contiguous attachments run to that level, as does treatment of ulcerations, along with nail disease, callosities and verruca. The grant covers bone work, not merely soft tissue.
• The tibiotalar joint is the surgical ceiling. Subsection (1)(g) excludes amputations proximal to that joint, proximal osseous procedures that do not involve it, and the administration of intravenous sedation or general anesthesia.

The definition also reaches “local manifestations of systemic disease in the human foot and ankle,” which is why the diabetic and vascular questions above sit squarely inside podiatric scope rather than at its margin.

Where the boundary decides something

Three situations recur. Amputation level: a below-knee amputation is not a podiatric procedure, so a claim arising from one is almost never about the amputation itself — it is about what happened upstream, and whether the referral was made when the record shows it should have been. Sedation: an office procedure performed under intravenous sedation raises a licensure question distinct from any question of technique, and the two should not be pleaded as one. Proximal bone work that does not involve the tibiotalar joint sits outside the license however competently it was performed.

One caution that matters on older files: this definition has been amended, and scope is measured as it stood on the date of the occurrence. On a claim from an earlier treatment period, check the version then in force rather than the current one, because the answer can differ. As with everything on this page, that is how a practicing podiatric surgeon reads it, not legal advice.

Where these cases actually go wrong

Foot and ankle claims cluster into a handful of recurring patterns. Knowing which one you have usually tells you early whether the file is worth the workup.

The diabetic foot chain

The highest-value podiatric claims are rarely about a single bad act. They are about a chain: an ulcer that is not offloaded properly, an infection that is not recognized or not imaged, a vascular assessment that is never ordered, and an amputation months later. The decision point that decides the case is almost always weeks or months upstream of the amputation, and it is usually documented. Reviewing these, I am looking for the visit where the record shows the trajectory changing, and the response that did or did not follow.

Elective forefoot surgery

Bunion and hammertoe claims are usually won or lost on indication and consent rather than on technique. A malunion or a transfer lesion can be a recognized complication of a properly performed procedure. The harder questions are whether the operation was indicated at all, whether conservative care was genuinely exhausted, and whether the patient was told what a realistic outcome looked like. A technically clean operation performed on a poor indication still reads as a defensible chart until someone examines the pre-operative notes closely.

Injuries missed on the first films

Lisfranc injuries, subtle stress fractures and syndesmotic disruption are the classic misses, and they share a feature that helps your case: the original imaging still exists and can be re-read. Where the initial films are genuinely equivocal, the question moves to whether the follow-up and weight-bearing views that would have settled it were ever obtained.

What a merit review will and will not tell you

A merit screening answers three separate questions: whether the care fell below the standard, whether that departure caused the outcome, and whether the injury is durable enough to be worth pursuing. A case can fail any one of them while looking strong on the others. Poor documentation is not negligence. A bad outcome is not causation. A real departure that changed nothing is not damages.

What a review cannot do is supply an opinion the record does not support. If the chart is thin, the honest answer is that the chart is thin — and that answer is worth more before you have invested in workup than after.

Records worth sending first

A screening opinion rarely needs the entire file. These usually decide it:

• Office notes for the treating period, including the visits before the index event, not only those after it
• Operative reports, and any anesthesia record
• All imaging — the images themselves, not only the radiology reports
• Wound care and offloading documentation, including which device was actually dispensed
• Vascular studies and referral correspondence, or evidence that none exists
• Laboratory results bearing on infection
• The signed consent, and the note that preceded it

How an engagement is structured

• Conflict check first. Send the parties and treating providers before any records change hands.
• Merit screening. A candid read on whether the records support the theory, early enough to matter.
• Written opinion. Standard of care, breach, causation and damages, addressed separately.
• Affidavit of merit where the jurisdiction requires one.
• Examination and testimony. Independent medical examination, deposition and trial.

If the records do not support the theory, the review will say so. That is more useful to you early than late, and it is the same analysis whichever side retains me.

Start with a conflict check

Send the parties, treating providers and a one-paragraph summary. Fees, engagement terms, qualifications and the full case-type list are at PodiatryMedLegal.com, or start directly with the case submission form.

This page describes medico-legal consulting services for attorneys. It is not legal advice and does not create an attorney-client or expert-client relationship. It is separate from the clinical practice of Balance Foot & Ankle Specialists and does not describe patient care services.