Daniel Ratner and Raphael Berman Prevail On Appeal In Podiatry Case

After having two toes amputated because of peripheral vascular disease, plaintiff sued HPM&B’s client, a podiatrist, for malpractice on a theory that he should have diagnosed this condition or consulted with plaintiff’s vascular surgeon.

Our client saw plaintiff on one occasion for the limited purpose of treating an infection on her right hallux. He then referred plaintiff to her vascular surgeon for treatment of vascular problems in the area of her fourth and fifth toes. Two days later, plaintiff saw her vascular surgeon, who diagnosed and treated the condition. On the podiatrist’s behalf, HPM&B moved for summary judgment in the Supreme Court, Nassau County.

After the lower court denied the motion, HPM&B’s Appeals Unit filed an appeal in the Appellate Division, Second Department. The Appellate Division reversed the decision and dismissed the complaint. The Appellate Division held that defendant established his entitlement to summary judgment by submitting two expert affidavits in which the experts opined that the podiatrist treated plaintiff properly and did not cause or contribute to plaintiff’s loss.

The court also ruled that plaintiff’s expert’s conclusory affidavit failed to establish a triable issue of fact. See Slone v. DeCicco, 775 N.Y.S.2d 891 (2d Dep’t 2004).