Ostrowski v. Azzara There Existed

¶ … Ostrowski v. Azzara there existed a material issue of fact about whether the patient's failure to follow the medical care instructed may have contributed to the harm caused. We will consider whether or not a physician should be immune from liability in those cases in which the patient's contribution to the harm suffered was as great as the physician's contribution. It is the author's opinion that the failure of Ostrowski to follow Azzara's medical advice contributed to her problems following the removal of her toenail.

Facts of the Case:

Ostrowski (the plaintiff) consulted with Dr. Azzara (the defendant), a podiatrist, for her sore left big toe. Ostrowski was a very heavy smoker, an insulin-dependent diabetic and morbidly obese. Dr. Azzara diagnosed Ms. Ostrowski with a fungal disease of the toenail that required its removal. The tests done by Dr. Azzara also revealed that Ms. Ostrowski had high blood sugar levels and a peripheral vascular disease. Dr. Azzara explained to Ms. Ostrowski that she could possibly loose a limb if she failed to better monitor her blood sugar levels and to lose weight. After the procedure was, continued to smoke against Dr. Azzara's advice. After this, her big toe became painful, discolored and pregangrenous due the lack of blood circulation to the toe. As a result, Ms. Ostrowski required two operations and also a vein transplant procedure to save her foot and leg from amputation ("Ostrowski v. azzara," 2012).

Ms. Ostrowski filed a lawsuit against Dr. Azzara for malpractice. At the trial, Dr. Azzara presented evidence that Ms. Ostrowski contributed significantly to her injuries when she continued to smoke against his advice and failed to maintain her weight, blood sugar, and diet at healthy levels. The jury found Dr. Azzara acted negligently in removing Ostrowski's toenail without consideration of her vascular condition. However, they denied Ms. Ostrowski damages because she was more at fault. The court of appeals affirmed the jury's verdict (ibid.).

Based upon this, M.J. Hudson and G.P. Moore

advise physicians in article in the Journal of Emergency Medicine

that "The case of Ostrowski v. Azzara illustrates comparative fault

...By comparative negligence, the jury ruled in favor of the physician and the patient recovered no damages (Hudson & Moore, 2011, 602)."

The legal advice that the authors provide is to document communication of the medical information with charts and other data. Additionally, the patient needs to be contacted for follow up. If the patient can not be contacted, then this should be documented as well in the patient's file (ibid.). Better documentation could have exonerated Dr. Azzara completely.

The above was also the legal opinion of Douglas H. Cook in an article in the American University Law Review when he noted that "The court thus recognized that potential plaintiffs have an inherent

responsibility to participate in the management of and, if possible, the minimization of their own damages (Cook, 1995, 1255).

" Thus, the patient is partially responsible for the maintenance of their treatment and if they refuse the advice of the physician, it is the grounds for mitigation in a malpractice lawsuit.