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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