Partners Karen B. Corbett and Gregory A. Cascino obtained a reversal by the Appellate Division, Second Department, and dismissal of a podiatric malpractice case pending in Nassau County Supreme Court.
This podiatric malpractice case concerns decedent, an 82-year old insulin-dependent diabetic, with a history of heart disease, double bypass surgery, pacemaker insertion and peripheral vascular disease who was a long time patient of the defendant's practice. On January 14, 2015, the decedent presented to defendant podiatrist with a chief complaint of a self inflicted burn to the top of his right foot which reportedly occurred 3 days earlier as the result of his falling a sleep with a heating pad on his foot. He was diagnosed with a 2nd degree burn to the foot and Silvadene cream was applied and the patient was instructed regarding daily dressing changes and he was given a prescription for Augmentin 875 mg and for Silvadene cream. He was told to return for follow up in 1 week. The patient returned 6 days later at which time revealed the wound was improved. No signs of infection or cellulitis were noted. Silvadene was re-applied, the foot was wrapped and the patient was again instructed on daily dressing changes; he was given a new prescription for Augmentin 875 mg and he was again told to return for follow up in 1 week. The patient returned 11 days later at which time the condition of the wound had not changed. The patient was referred to our client hospital’s Wound Clinic for possible hyperbaric oxygen treatments and to follow up in 1 week, however he never returned. He thereafter treated at the Wound Clinic 6 times over the next 6 weeks before being hospitalized for dry gangrene and osteomyelitis. he subsequently underwent an amputation of his right foot. At his first two visits to the Wound Clinic, the burn was not infected and the treatment provided was identical to the care provided by the defendant podiatrist. Plaintiff's action alleged a failure to diagnose and properly treat infection. The defendant's motion for summary judgment was supported by an podiatric expert affirmation which attested that the defendant properly diagnosed the second degree burn and she provided appropriate wound care and prescribed prophylactic antibiotics which effectively promoted healing and prevented infection from developing. The expert also attested that the patient was appropriately referred to a wound clinic when healing was not progressing. The expert further attested that the injuries including the right amputation and the patient's death had nothing to do with the care provided by the defendants. The trial court found that although a prima facie case was made, they denied our motion, finding that plaintiff’s expert's affirmation which contended that burn was misdiagnosed as being a second degree burn when it was actually a third degree burn and as a result, the patient should have been send to the hospital at the first encounter. Notably, plaintiff's expert's opinion was based on photographs taken after the initial examination by the defendant podiatrist. The trial court found that plaintiff's expert's opinion was sufficient to raise an issue of fact, justifying denial of our motion. We appealed.
By a 3-1 majority, the Second Department has reversed the Supreme Court and dismissed Plaintiff’s claims in their entirety. Specifically, the Second Department held that we met our prima facie burden on our summary judgment motion, while the affirmation from Plaintiff’s expert podiatrist was speculative and conclusory and failed to raise an issue of fact. In particular the Second Department noted that at the last visit our client referred Decedent to a wound care clinic, and that when Decedent presented there a week later, he “received the same diagnosis and course of treatment prescribed by the defendant” (emphasis by the Court). The appellate court also found that the decedent’s medical records from his subsequent hospital admissions did not contain any casual connection between his amputation and subsequent death and the care and treatment he received from our client. Thus, the Second Department held that Decedent’s medical records “undermine the opinion of the plaintiff’s expert that an earlier referral to an emergency room/specialist/wound care center for more aggressive treatment would have resulted in a better overall outcome for the decedent.” Accordingly, the Second Department reversed the Supreme Court and dismissed the Complaint.