10/28/2015    New York Jury Verdict Review & Analysis

Altered Gait and Pain Caused By "Tripod Foot." (NY)

Facts: 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.

Result: 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.

Plaintiff's Expert: Steven Boc, DPM from
Philadelphia, PA
Defendant's experts: Tzvi Bar-David, DPM from New
York, NY and Ralph Napoli, DPM from Elmwood Park,
NJ

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