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Anderson v. Picciotti5/23/1996
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
BARBARA ANDERSON V. DR. JOSEPH PICCIOTTI, ET AL. (A-72-95)
Argued January 17, 1996 -- Decided May 23, 1996
COLEMAN, J., writing for a unanimous Court.
In September of 1987, Barbara Anderson, an insulin-dependent diabetic, was referred by her orthopedist to Dr. Urbas, a podiatrist, for toenail care. While clipping her toenails, Dr. Urbas cut Anderson's right big toe, causing some bleeding. Over the following week, Anderson's toe became red and swollen. Unable to schedule another appointment with Dr. Urbas, Anderson visited her internist, Dr. Lurakis, who diagnosed cellulitis of the toe and prescribed an oral antibiotic and warm soaks for the toe.
On October 7, 1987, Dr. Lurakis admitted Anderson to Kessler Memorial Hospital for an unrelated illness. While in the hospital, Dr. Lurakis again examined Anderson's toe, which continued to be red and swollen. Dr. Picciotti, a podiatrist, was consulted. On October 8, 1987, Dr. Picciotti removed the toe nail and took a culture, which revealed the presence of a bacteria commonly found in foot infections and a common cause of osteomyelitis, an infection of the bone. Because he was concerned that Anderson may have osteomyelitis, Dr. Picciotti ordered a radiologic bone scan. Based on the radiologist's report that the bone scan indicated inflammation consistent with osteomyelitis, Dr. Picciotti, on October 14, 1987, advised Anderson that she had osteomyelitis of the right big toe. By that time, Anderson had been taking the oral antibiotics prescribed by Dr. Lurakis for four weeks. A second bone scan taken on October 20, 1987, revealed a slightly less certain, but nonetheless likely, indication of bone infection. On October 23, 1987, Dr. Picciotti amputated Anderson's right big toe. Dr. Picciotti had not obtained a bone biopsy before the amputation.
Anderson's medical malpractice action against Dr. Picciotti was tried on three theories of liability: 1) Dr. Picciotti deviated from accepted standards of care when he amputated Anderson's great toe without first obtaining a bone biopsy to make a definitive diagnosis of osteomyelitis; 2) Dr. Picciotti deviated from the proper standard of care because he failed to administer intravenous (IV) treatment for a non-osteomyelitic inflammatory process before amputating the toe; and 3) Dr. Picciotti performed the amputation without obtaining Anderson's informed consent. Dr. Picciotti defended, claiming that Anderson had osteomyelitis and that he did not deviate from the proper standard of care.
During a jury charge conference, defense counsel for Dr. Picciotti requested that the jury be charged in accordance with the enhanced risk standard of causation defined in Scafidi v. Seiler (Scafidi). In support of that charge, counsel argued that osteomyelitis was properly diagnosed pre- and post-operatively; that amputation was a proper treatment option for osteomyelitis; that because Anderson had osteomyelitis, IV treatment would not have guaranteed a cure; and that there was a risk that the toe would have been amputated anyway. The trial court declined to give a Scafidi charge, concluding that this was not a Scafidi increased risk type case. Accordingly, the jury was given the standard "but for" proximate cause instruction.
At the Conclusion of trial, the jury found that Dr. Picciotti deviated from accepted standards of medical practice by perf
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