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Medical malpractice - Podiatry - Alleged malpractice during metatarsal osteotomy - Lack of informed consent - Alleged failure to monitor and negligent post-operative care - Continuing pain and disability.

Queens County, NY

The plaintiff contended that the defendant podiatric surgeon failed to properly perform a second metatarsal osteotomy surgery to treat a hammertoe of her right foot’s second toe, that he failed to obtain informed consent to the procedure, and that he failed to render proper post-operative care. The plaintiff maintained that immediately after the procedure she felt fine and was advised by the defendant that she could return to work. She then claimed to feel pain and was required to undergo follow-up surgery and that she continues to feel ongoing pain and disability. The defendant argued that the procedure he performed was consistent with podiatric standards for a second metatarsal osteotomy and that he did not advise the plaintiff to return to work for five weeks while she remain non-weight bearing.

On September 23, ________, the 58-year-old female plaintiff, a maintenance worker, underwent the second metatarsal osteotomy in the defendant’s office. The procedure involved shaving the bone that connected her left foot’s second toe and the middle portion of her left foot. The procedure also included the removal of a neuroma. On October 5, ________, the defendant removed the surgical sutures. The plaintiff immediately returned to work and on November 9, ________, she reported that she was feeling much better.

The plaintiff claimed that she developed intensifying pain that stemmed from her right foot. By September of ________, she had visited the defendant three times to seek evaluation of the pain. On March 20, ________, another podiatrist performed follow-up revision surgery, but the plaintiff claimed that she suffers continuing pain and disabilities. She claimed that she has to rest after walking long distances and her disability impairs her ability to perform housework.

The plaintiff commenced this action against the defendant alleging that he negligently performed the surgery, that he failed to obtain informed consent to the procedure and that he failed to render proper post-operative care. Specifically, she contended that her second metatarsal did not heal properly because the defendant had failed to apply both internal and external fixation devices, and instead only applied external fixation.

The plaintiff’s podiatric expert opined that the defendant would have been able to correct the improper healing had he performed X-rays during the second, fourth and sixth weeks following surgery. The plaintiff further contended that the defendant should not have advised her to return to work as soon as she did, less than two weeks after surgery. In addition, the plaintiff alleged that the defendant did not disclose the risks associated with the procedure and that, therefore, the plaintiff did not give informed consent. This claim was predicated on the plaintiff’s difficulty in understanding English. The judge dismissed that claim.

The defendant argued that the external fixation he used was consistent with podiatric standards for a second metatarsal osteotomy and that he did not approve of the plaintiff returning promptly to work; rather, he advised her to remain non-weight bearing form four to five weeks after the surgery. The defense further argued that the X-rays he performed during the first and fifth weeks after surgery were consistent with the standard of 3n 3 care and that more frequent X-rays would not have altered the plaintiff’s outcome. Defense experts opined that the plaintiff’s one actual disability stemmed from the displacement of an implant that was inserted during the revisionary surgery performed by a different surgeon. They maintained that removal of the implant would resolve the plaintiff’s pain.

The trial lasted five days. After deliberating for five hours, the jury of one male and five females returned a unanimous defense verdict.

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