12/02/2013 NY Jury Verdict Reporter
Alleged Unnecessary and Negligent Surgery (NY)
Case Summary: On May 18, 2006, plaintiff Joseph
Mazzilli, 65, a private investigator, underwent
arthroscopic surgery that addressed an arthritic
condition of his left ankle. The procedure was
performed by Defendant podiatrist, and it involved
the removal of the os trigonum, which is an
accessorial bone that is situated behind an ankle.
During the surgery, Defendant accidentally severed
the neighboring sural nerve. Mazzilli claimed that
additional nerves were severed. He underwent
follow-up surgery, but he claimed that he suffers
residual pain and limitations.
Mazzilli sued Defendant. Mazzilli alleged that
Defendant failed to properly address the arthritic
condition of his left ankle, that he failed to
properly perform the surgery, that Defendant
failed to obtain informed consent to the procedure
and that Defendant's failures constituted
malpractice.
Mazzilli's expert podiatrist and expert
radiologist agreed that Defendant's surgery was
unnecessary. The experts contended that Mazzilli
was suffering pain that stemmed from an arthritic
condition of the subtalar joint, and they opined
that the condition would not have been relieved
via removal of the os trigonum. The expert
podiatrist further opined that arthroscopic
surgery was not a safe method of removing a bone
whose size approximated that of the os trigonum.
Mazzilli's expert podiatrist also claimed that
conservative treatment may have produced results
that would have obviated the need for surgery, but
that Defendant prematurely abandoned that course
of treatment. Mazzilli claimed that Defendant did
not suggest additional conservative treatment. He
also claimed that Defendant did not warn that the
surgery could have involved the severing of a
nerve. Thus, Mazzilli's counsel contended that
Defendant did not obtain informed consent to the
surgery that he performed.
Mazzilli's counsel presented the neurosurgeon who
performed the follow-up surgery that Mazzilli
underwent. The doctor contended that Defendant
damaged Mazzilli's left ankle's sural nerve, the
ankle's medial calcaneal nerve and the ankle's
medial plantar nerve. The doctor detected neuromas
of the medial plantar nerve, but he acknowledged
that the neuromas could have been a product of
repetitive stress.
Defendant acknowledged having severed Mazzilli's
left ankle's sural nerve, but he claimed that the
injury is an accepted complication of the surgery
that he performed. He denied having damaged the
ankle's medial calcaneal nerve or the ankle's
medial plantar nerve. He contended that the
surgery addressed the lateral side of Mazzilli's
left ankle, that the medial side's nerves were
shielded by the flexor hallucis longus tendon,
which was not damaged, and that the tendon's
intact condition proved that the surgery did not
involve the medial side of the ankle.
The defense's expert podiatrist agreed that
Defendant could not have damaged nerves that were
situated in the medial side of the ankle. The
defense's expert radiologist reviewed the results
of MRI scans that were performed during the six
weeks that followed the surgery that Defendant
performed, and the expert opined that the scans
did not reveal damage or inflammation of the
nerves that were situated in the medial side of
the ankle.
Defendant also contended that surgery was an
appropriate, necessary means of addressing
Mazzilli's arthritis. He claimed that conservative
treatment
Injuries: Mazzilli claimed that he sustained
damage of his left ankle's sural nerve, his left
ankle's medial calcaneal nerve and his left
ankle's medial plantar nerve. He underwent the
administration of painkilling injections, but he
claimed that the treatment caused permanent damage
of his sciatic nerve. He claimed that the damage
causes pain that stems from his left foot, his
left leg and his testicles.
He also claimed that he suffers permanent residual
numbness of his left ankle, permanent residual
numbness of his left foot and a permanent residual
diminution of his left ankle's range of motion. A
doctor recommended electrical stimulation of
Mazzilli's spine, but Mazzilli declined the
treatment.
Mazzilli sought recovery of a total of $1.8
million for past and future pain and suffering.
Result: $0 (Defendant's verdict)
Plaintiff Expert(s):Steven F. Boc, DPM,
Philadelphia, PA Alexander Weingarten, MD,
Syosset, NY, Andrew Collins, MD, New York, NY,
Stephen Russell, MD, Mehrdad Golzad, MD, Elmhurst,
NY, Alon Mogilner, MD, Great Neck, NY
Defendant Expert(s): Kevin Jules, DPM, Brooklyn,
NY, Scott S. Coyne, MD, Yaphank, NY, Surya Murthy
Vishnubhakat, MD, Manhasset, NY
Award Details: The jury rendered a defense
verdict. It found that Defendant sufficiently
pursued conservative treatment of Mazzilli's
condition, that Defendant obtained informed
consent to the surgery that he subsequently
performed, that Defendant did not damage the nerves
of the medial side of Mazzilli's left ankle and
that the conceded injury was a known complication
of the surgery that Defendant performed.
