Melville v. Southward

791 P.2d 383 (1990)

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Nature of the Case

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Facts

P consulted Southward (D) for an ingrown toenail. The defendant removed the ingrown toenail. D than recommended that P undergo a surgical procedure known as a metatarsal osteotomy in order to relieve the discomfort P had been experiencing. The recommended surgery consisted of the cutting and shortening of the metatarsal shaft of the second toe in the right foot. The surgery was performed in D's office. D applied a local anesthesia and made a minimal incision, about a quarter-inch wide, through the top of the foot and then used a drill to fracture the metatarsal shaft and a dental burr to remove any bone fragments. P was to soak her foot in vinegar and water. D wrapped the foot in a Unna boot, placed P's foot in a half shoe, and provided P with a pamphlet containing post-operative instructions. Things did not go well. P gave her antibiotics and rewrapped the foot. P gave up on D and went to her family doctor. The surgical site was badly infected. Without improvement, P was admitted to a hospital for the administration of antibiotics intravenously. Barnard, an orthopedic surgeon, practicing in the area, was recommended. The foot was permanently injured and P would always have problems walking and balancing. P sued D for malpractice. Barnard was offered as a medical expert. D objected; no foundation had been laid regarding Barnard's knowledge of the standard of care applicable to podiatry. Barnard's testimony was that D's care was substandard. Barnard testified that the surgery was unnecessary because none of the pre-surgical X-rays indicated a deformity in the metatarsal; and second, even assuming the surgery was necessary, the osteotomy was performed in an unsterile office environment and thereby subjected the bone to a high risk of infection. Barnard acknowledged that he was unfamiliar with the standards applicable to podiatric foot surgery, was not familiar with podiatric literature, had never received any instruction on podiatry, and had never performed the surgical procedure involved in this case. D moved for a directed verdict, claiming that the plaintiff had failed to establish a prima facie case of negligence due to the lack of any expert testimony on the applicable standard of care for podiatric surgery and post-operative care and treatment. The jury gave the verdict to P, and D appealed. The court of appeals agreed with D. P appealed.