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Melville v. Southward5/14/1990
The question in this case is whether a plaintiff in a medical malpractice action against a podiatrist, who performed foot surgery and rendered post-operative care and treatment to the plaintiff, may elicit expert opinion testimony from a practitioner of another school of medicine, namely orthopedic surgery, on the standard of care applicable to podiatric surgery and post-operative care and treatment. The trial court permitted the plaintiff, over the defendant's objection, to elicit an expert opinion from an orthopedic surgeon that the podiatric surgery performed on the plaintiff's foot and the post-operative treatment rendered to the plaintiff fell below the standard of care applicable to the surgery in question and also fell below the standard of care applicable to the post-operative care and treatment of the patient. The court of appeals, in an unpublished opinion, reversed the judgment entered on the jury verdict for the plaintiff and ordered the dismissal of the plaintiff's complaint with prejudice, reasoning that the testimony of the orthopedic surgeon was insufficient as a matter of law to establish a prima facie case of negligence against the podiatrist. Melville v. Southward, No. 86CA1029 (Colo. App. Nov. 25, 1988). We agree with the court of appeals that the lack of any foundation for the orthopedic surgeon's familiarity with the podiatric standard of care for the surgery in question and the post-operative care and treatment of the patient rendered the orthopedic surgeon's opinion testimony inadmissible. However, contrary to the court of appeals' decision, we believe that the proper disposition of this matter is to return the case to the trial court for a new trial.
I.
The plaintiff-petitioner, Lulu Melville (plaintiff), filed a negligence action in the district court of Fremont County against the defendant-respondent, Dr. Stanton C. Southward (defendant), a licensed podiatrist. The complaint, as pertinent here, alleged that on or about August 14, 1980, the defendant performed a surgical procedure in his office on the plaintiff's right foot, that the surgical procedure fell below the standard of reasonably careful podiatric surgery, that defendant failed to provide adequate post-operative care and treatment, and that the plaintiff sustained a serious infection and developed osteomyelitis as a result of defendant's negligence. The defendant denied the allegations of negligence and asserted that any injury suffered by the plaintiff was a result of her own negligence.
The case proceeded to a jury trial on May 27, 1986, at which the defendant represented himself. The evidence at trial established the following sequence of events. The plaintiff first consulted the defendant in July 1980 for an ingrown toenail. The defendant removed the ingrown toenail and subsequently, on August 14, 1980, recommended that plaintiff undergo a surgical procedure known as a metatarsal osteotomy in order to relieve the discomfort that the plaintiff 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 plaintiff agreed to the surgery, and it was performed on August 14 in the defendant's office. The defendant applied a local anesthesia to the plaintiff's foot 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. After completing the surgery, he instructed the plaintiff to soak her foot in vinegar and water. The defendant wrapped the foot in a Unna boot, which basically is an ace bandage soaked in an antibiotic, placed plaintiff's foot in a half shoe, and provi
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