After 6 days of trial in Supreme Court, Bronx County, FKB’s Neil S. Kornfeld and Tracy S. Katz obtained dismissal of a podiatric malpractice case.  The case involved allegations that a podiatric surgeon performed an overly aggressive bunionectomy surgery, i.e. a Keller procedure, instead of performing a less risky and less invasive procedure on the patient, i.e. a cheilectomy.  Plaintiff also alleged that the podiatric surgeon failed to obtain her informed consent.  Plaintiff claimed that she in that she was never told about the less risky cheilectomy procedure and that had she been informed about it, she would have elected to undergo the cheilectomy instead of the Keller.   Plaintiff alleged that as a result of the surgery, she suffered from difficulty ambulating, inability to participate in her normal activities of daily life and constant and severe pain and suffering.

Over the course of a 6 day trial, Neil S. Kornfeld and Tracy S. Katz called the plaintiff’s subsequent treating podiatrist to testify that the Keller procedure was properly performed.    The defense also was able to establish that the plaintiff had brought at least 4 other personal injury lawsuits where she had alleged the same injuries in other cases.   The defense also used plaintiff’s medical records to establish that she had a long-standing history of knee, ankle, hip and back problems,  and that she needed to use a cane and had difficulty ambulating for reasons unrelated to her alleged foot injuries.    

Most significantly, the defense obtained the plaintiff’s prior deposition testimony from her other personal injury lawsuits and used the testimony to impeach her credibility.  The defense was able to establish that plaintiff gave substantially different answers to the same questions under oath in different lawsuits.

After cross-examination of the plaintiff, plaintiff’s counsel was unable to produce an expert to testify on her behalf and the Judge dismissed the case.

If you have any questions, please contact Tracy S. Katz or Neil S. Kornfeld.