12/29/2015    NY Jury Verdict Reporter

Left Foot Bunion Surgery That Involved Fusion of Growth Plate on First Metatarsal of 12-Year-Old Infant Plaintiff - Altered Gait and Pain Caused By

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 performed 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.

Result: $ 1,391,666

Plaintiff Expert: Steven Boc, DPM,
Philadelphia, PA

Defendant Experts: Tzi Bar-David, DPM, NY, NY,
Ralph Napoli, DPM, Elmwood Park, NJ

Source: NY Jury Verdict Reporter

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