New York Appellate Court Affirms Triable Issue In Medical Malpractice Claim Against Podiatrist

The New York Supreme Court Appellate Division, Third Department (“New York Appellate Court”) held in its October 21, 2021 opinion: “Viewing the evidence in a light most favorable to plaintiffs, as the nonmoving parties, their expert affirmation is sufficient to raise a triable issue of fact as to whether offering and then performing bilateral amputation of Schrader’s second toes deviated from the generally accepted standard of podiatric care, and whether any such deviation proximately caused her injuries.”

Background Facts

Plaintiff Elizabeth Schrader sought treatment from the Defendant podiatrist for bunions and crossover deformities involving the great and second toes on both feet, which caused her pain and prevented her from wearing most shoes. Defendant presented options of conservative treatment, surgery to reconstruct the forefoot or amputation of the second toes and shaving of the bunions. In part because defendant described the latter option as requiring substantially less recovery time than reconstructive surgery, Schrader opted for amputation and bunion shaving. Defendant performed that surgery, with consent and without complication. Months later, after she began experiencing pain and other problems with her toes, Schrader sought treatment from two other podiatrists, who opined that amputation was not the proper treatment for her initial problems. One of those podiatrists performed further surgeries to resolve Schrader’s pain and difficulty walking.

Schrader and her spouse, derivatively, commenced their New York podiatry medical malpractice lawsuit against the Defendant podiatrist. Defendant moved for summary judgment dismissing the complaint, arguing that her treatment did not deviate from the applicable standard of care and submitting medical records, deposition testimony, her own affidavit and an expert affidavit by Edwin Wolf, a licensed podiatrist. Plaintiffs opposed and submitted a redacted expert affirmation (see CPLR 3101 [d] [1] [i]), arguing that Defendant’s offer and performance of the bilateral amputation deviated from the standard of care and caused the alleged injuries. Finding that the parties’ submissions raised triable issues of fact, the Supreme Court denied the Defendant’s motion, and the Defendant appealed.

According to Plaintiffs’ expert, second-toe amputation was not within the standard of care for a patient with a crossover deformity because it would not, and did not, correct the initial problems diagnosed by Defendant and it created imbalance in Schrader’s forefoot that required later surgery, which would not have been necessary had Defendant performed the correct surgery in the first instance. The expert opined that amputations are indicated for conditions such as “infection, osteomyelitis, ulcers, [and] nonhealing wounds,” and should not have been considered as an option for a healthy 57-year-old woman who could have endured standard surgical procedures to correct a crossover deformity. As a result of Defendant’s alleged negligence and departures from the standard of care, the expert opined that Schrader had to undergo other surgical procedures and will permanently suffer pain, scarring and loss of motion and flexibility of both feet.

The New York Appellate Court held that the parties’ competing expert affidavits and affirmations present triable issues of fact and therefore the Supreme Court properly denied Defendant’s motion for summary judgment dismissing the complaint.

Source Schrader v. Nichols, 2021 NY Slip Op 05759.

If you or a loved one suffered harm due to medical negligence of a podiatrist in New York or in another U.S. state, you should promptly find a New York medical malpractice lawyer or a medical malpractice lawyer in your state who may investigate your podiatrist medical negligence claim for you and represent you or your loved one in a podiatry medical malpractice case, if appropriate.

Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.

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This entry was posted on Tuesday, November 16th, 2021 at 5:27 am. Both comments and pings are currently closed.


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