Ostrowski v. Azzara

Ostrowski (plaintiff) consulted Dr. Azzara (defendant), a podiatrist, for a sore left big toe. Ostrowski was heavy smoker, an insulin-dependent diabetic, and obese. Azzara diagnosed Ostrowski with a fungal disease of the toenail requiring its removal. Tests conducted by Azzara also revealed that Ostrowski had very high blood sugar levels and some peripheral vascular disease. Azzara explained to Ostrowski that she could loose a limb if she did not better monitor her blood sugar levels and her weight. After the procedure was performed, Ostrowski continued to smoke against Azzara’s medical advice. Also, her toe became painful, discolored, and pre-gangrenous due to a lack of blood circulating to the toe to aid in the healing process. As a result of her poor circulation from the diabetes and her smoking habits, Ostrowski required two operations and a vein transplant procedure in an attempt to save her foot and leg from amputation. Ostrowski filed suit against Azzara for malpractice and at trial, Azzara was permitted to present evidence that Ostrowski significantly contributed to her injuries because she continued to smoke against medical advice and failed to maintain her weight, diet, and blood sugar at acceptable levels. No medical expert for either side testified that Ostrowski’s post-treatment health habits could have caused her need for surgery six weeks after Azzara’s toenail removal. The jury found Azzara acted negligently by removing Ostrowski’s toenail without adequate consideration of her vascular condition, but denied Ostrowski any damages because she was more at fault for continuing to smoke and failing to properly take care of herself after the procedure. The court of appeals affirmed the jury’s verdict in favor of Azzara and Ostrowski appealed.