Invest in your success.
JVRA helps lawyers win cases by providing critical information you can use to establish precedent, determine demand and win arguments.
ARTICLE ID 158851
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 foots 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 defendants office. The procedure involved shaving the bone
that connected her left foots 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
The plaintiffs 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
plaintiffs 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
plaintiffs outcome. Defense experts opined that the plaintiffs
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 plaintiffs pain.
The trial lasted five days. After deliberating for five hours,
the jury of one male and five females returned a unanimous
5 ways to win with JVRA
JVRA gives you jurisdiction-specific, year-round insight into the strategies, arguments and tactics that win. Successful attorneys come to the table prepared and use JVRA to:
- Determine if a case is winnable and recovery amounts.
- Determine reasonable demand for a case early on.
- Support a settlement demand by establishing precedent.
- Research trial strategies, tactics and arguments.
- Defeat or support post-trial motions through past case histories.
Try JVRA for a day or a month, or sign up for our deluxe Litigation Support Plan and put the intelligence of JVRA to work for all of your clients. See our subscription plans.