The Proof Is In The Handwriting - KBR Wins Defense Verdict In Podiatric Malpractice Case Where Plaintiff Alleged That The Signature On The Consent Form Was Not Hers

 

KBR represented the defendant podiatrist in this case where plaintiff alleged the negligent performance of a Keller bunionectomy procedure, lack of informed consent and battery.  We successfully dismissed the battery cause of action by motion in limine.

 

During the trial, the plaintiff claimed that the surgery destroyed her life; she could not walk properly, could no longer exercise, was no longer active, could not walk long distances and was in constant pain.  Plaintiff claimed that she was never apprised of the risks of the surgery and that had she been informed she never would have consented.  Plaintiff denied that the signature on the consent form was hers.

 

Plaintiff's podiatry expert testified that it was a departure from the standard of care to fail to advise the patient that not having surgery was a viable option for her condition.  He opined that this procedure was contraindicated for this plaintiff because she had pain-free range of motion.  Significantly, since the plaintiff's expert never opined that the surgery itself was performed improperly or that any departures were committed during the actual procedure, KBR moved for and successfully obtained a dismissal of the malpractice cause of action at the close of the plaintiff's case and thus, the only cause of action that went to the jury was the claim for lack of informed consent.

 

Since the plaintiff insisted that the signature on the consent form was not hers, KBR called a handwriting expert to testify at trial.  He opined that the signature on the consent form was in fact that of the plaintiff and he explained his opinion and how he arrived at that conclusion.

 

KBR also called an expert podiatrist who testified that the Keller bunionectomy was indicated for this patient even though she had pain-free range of motion.  The expert also opined that the patient was properly informed of all of the risks, benefits and alternatives to the surgery.

 

The jury rendered a verdict in favor of the defendant; the plaintiff waived all rights to post-trial motions and appeals.

 

Jeffrey C. Gerson, of the Medical Malpractice group, obtained this defense verdict.

 

Kiefert, (Supreme Court, Richmond County, Index #:  100672/08)