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Attorney(s) for Plaintiff:
Barry Kantrowitz
Kantrowitz, Golhamer & Graifman, P.C.
www.kgglaw.com

$1,391,666 VERDICT – MEDICAL MALPRACTICE – PODIATRIC MALPRACTICE – ALLEGED IMPROPER PLACEMENT OF SCREWS DURING BUNION SURGERY THAT INVOLVED FUSION OF GROWTH PLATE ON FIRST METATARSAL OF 12-YEAR-OLD INFANT PLAINTIFF – ALTERED GAIT AND PAIN CAUSED BY "TRIPOD FOOT."

Rockland County, NY

This was a podiatric malpractice action involving an infant female plaintiff, age 12 at the time, in which the plaintiff contended that the defendant podiatrist negligently performed surgery that entailed the fusion of the growth plate of her left first metatarsal cuneiform joint. The defendant argued that although the growth plate was open, it was “closing and almost closed,” and therefore, the plaintiff had reached skeletal maturity, but she offered evidence that she grew two inches in the few months between the first and second surgery, and six inches up to the time of trial.

The defendant preformed a Lapidus and hammertoe procedure, as well as a subsequent surgery to do more hammertoe surgery and remove two screws, which, the plaintiff maintained, were improperly placed, resulting in the unintended fusion of the base of the first and second metatarsals. She maintained that she suffered a condition of "tripod foot," and that she will permanently suffer difficulties and pain walking. The infant plaintiff, who was previously very active and a member of sports teams, opined that she has been forced to give up such activities.

The defendant proposed and intended to do the same or similar surgery on the right foot six months later, but the plaintiff’s parents did not allow that to take place. The plaintiff contended that the defendant should not have performed surgery at all, but the jury found for the defendant on this issue. She contended that other surgical interventions that did not entail the fusion of the growth plates were available, and should have been used if the surgical option was chosen.

The defendant supported that he acted within the standard of care in the choice of surgeries, and further contended that a conservative approach would have little chance of success, and that it was appropriate to perform surgery.

The plaintiff stated that the jury should consider that such pain and difficulties ambulating will continue for the remainder of an extensive life expectancy.The jury found for the defendant on the issues related to exhausting conservative care before resorting to surgery and informed consent. They also found that the defendant was negligent in performing the surgery. The jury then awarded $275,000 for past pain and suffering, and $1,116,666 for future pain and suffering over 64 years.

Reference
Plaintiff's podiatric expert: Steven Boc, DPM from Philadelphia, PA. Defendant's podiatric expert: Tasvi Bar-David, DPM from New York, NY. Defendant's podiatric expert: Ralph Napoli DPM from Elmwood Park, NJ.

Brennan vs. Bernstein, DPM. et al.. Index no. 031252/12; Judge Margaret Garvey, 01-29-15.

Attorney for plaintiff: Barry S. Kantrowitz of Kantrowitz, Goldhamer & Graifman, P.C. in Chestnut Ride, NY.

Commentary
The plaintiff, in prevailing, emphasized that the surgery entailed a fusion of the growth plate at the very time she was growing. In this regard, the surgery to the left foot was performed in June 2010, and when the screws were removed in November 2010, the plaintiff had grown two inches. Additionally, the plaintiff emphasized that the proposed surgery on the right foot, which was never done, was clearly not necessary as the right foot was fine at the time of trial. The plaintiff’s expert maintained that any corrective surgery would be a salvage procedure and would not fully correct the problem, resulting in pain and difficulties throughout an extensive remaining life expectancy.

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