For pain from a fractured toe, a podiatrist used 19-year-old Tim McLennan as a guinea pig for experimental surgery.  Tom had suffered a small fracture in the joint of his big toe.  The podiatrist said there was no treatment that would ease the pain, suggesting surgery instead.  She said that fusion, the common procedure used to address such pain, would cause “early arthritis.” Instead, she suggested an experimental joint replacement, claiming that if it failed the toe could be fused anyway.

Without advising him of the risks, Tim's doctor removed a segment of bone from the joint and inserted an equine bio-implant with known rejection issues — an off-label usage not recommended by the product’s manufacturer.  The young man suffered severe post-surgical pain and inflammation, prompting the podiatrist to prescribe Tim more than 1,300 narcotic pills in 90 days.  In the following three years, attempts by three Stanford and UC Davis Orthopedic foot specialists to graft bone from Tom’s hip into the space and fuse the joint failed to heal.  He suffered through six surgeries, infection, chronic pain, narcotic dependency, post-traumatic stress disorder, and lost his mobility and any sense of independence.  Tim spiraled into life-threatening depression and his foot remains permanently damaged.

Despite an investigation by the California Medical Board and a Podiatry Board finding of prescribing negligence, the MICRA cap made it economically unfeasible for the family to bring suit an obtain justice for the pain and suffering that effectively destroyed three years of Tom’s life and will shadow the rest of his days.