11/06/2014    New York Jury Verdict Review & Analysis, Vol. 31, Issue 5

Failure to Employ Conservative Methods (NY)

Facts: The plaintiff, who was 16 at the time of
the 2008 treatment, contended that the defendant
podiatrist acted negligently in performing surgery
without first attempting a course of conservative
measures and that the surgery was unnecessary and
excessive. The plaintiff contended that she
presented with a moderate bunion on the great toe
of the left foot, a mild hammertoe condition on
the other four toes of this foot and some signs of
a mild ” tailor's” bunion on the other side of
this foot.

The plaintiff contended that recommending surgery
before conservative measures, including the use of
pads, injections or prostheses was improper and
especially contraindicated in view of the youthful
age. The defendant maintained that offering
surgical option only was appropriate and that the
plaintiff and her mother were fully apprised of
the risks. The plaintiff contended that the
surgery involved the removal of portions of the
joints and carried a risk of bone growing back
without cartilage. The plaintiff maintained that
such a result occurred in the subject case and
resulted in bone abrading on bone. The plaintiff
asserted that she experiences severe pain and will
continue to suffer this pain for the remainder of
her life.

The plaintiff further contended that the defendant
indicated that the items currently on his webpage
are accurate and established that a number of
memberships listed are not accurate, thereby
undermining his credibility. The plaintiff also
maintained that the billing for the defendant's
work was excessive and that he double billed for
some treatment. The defendant denied that this
position should be accepted. The defendant also
maintained that any lack of accuracy of
qualifications on the webpage being reflected
inadvertent errors only.

The plaintiff also endeavored to undermine the
believability of the defendant's records. The
defendant has two offices and at the office in
question, records are generally handwritten. The
plaintiff maintained that since the records in the
plaintiff's case were typed, it was likely that
they were rewritten subsequently. The defendant
denied improperly altering any records.

The plaintiff commenced teaching in the public
schools in the fall, 2013. The plaintiff contended
that she stands on her feet much of the day
despite the severe pain and is steadfastly
determined to prevent the pain from changing her
path in life.

Result: $775,000 verdict

Plaintiff's expert: Jack Gorman, DPM, Warminster,
PA.
Defendant's expert: Paul M. Greenberg, DPM, NY, NY

New York Jury Verdict Review & Analysis, Vol. 31,
Issue 5

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