The case of Eleanor Ostrowski v Lynn M. Azzara was a case principally regarding the legal significance of a medical malpractice claimant’s pre-treatment health habits. Ostrowski, the plaintiff, consulted Dr. Azzara, the defendant, who was a podiatrist, for an inflamed left big toe. Azzara examined it and diagnosed Ostrowski with a fungal disease on the toenail requiring its removal. She further did a test that revealed high blood sugar level and some peripheral vascular disease. Ostrowski had always been highly diabetic and insulin-dependent, a heavy smoker and obese. Azzara explained the risk of losing the limb if the blood sugar levels and weight were not monitored.
After the procedure was conducted, Ostrowski continued to smoke, which was against the medical advice given. The toe became more painful, discolored and pre-gangrenous due to lack of blood circulation which could be attributed to the diabetes and heavy smoking. Consequently, an operation and vein transplant had to be performed to save the foot and leg from amputation. Ostrowski sued Azzara for malpractice. During trial Azzara presented evidence that Ostrowki significantly contributed to her injuries. The jury accepted this evidence and found Azzara negligent for removing the toe nail without adequately considering the vascular condition. Ostrowski was denied damages for failing to properly take care of herself after the procedure was performed. Should a physician be immune from liability where the patient’s contribution to the harm suffered was as great as the physician’s contribution? Was the physician negligent at all?
Following the maxim, “the defendant takes the plaintiff as she finds her,” I find Azzara purely negligent for removing the toe nail without considering the vascular condition of Ostrowski fit for performance of the operation at that time. She should have monitored any improvements in Ostrowski’s lifestyle for a period of time while administering a safer treatment even if the treatment would have been less effective, rather than opting for a more effective treatment that had grave consequences given the circumstances of the patient. She should have waited for the sugar levels to normalize before removing the toe nail. Another question would be did she foresee the consequences? If she foresaw the consequences of the operation then she did a legal wrong and particularly was guilty of negligence, in my opinion.
One would also argue that the defendant who aggravated the preexisting condition should be responsible only to the extent of aggravation not the prior condition itself. In this context, if indeed Azzara called the wrong shot, then she would be more responsible than Ostrowski. Suppose there was no safer mode of treatment at that particular time other than removal of the toe nail? Does Azzara’s action amount to a legal wrong? Azzara had warned Ostrowski of the risk of loosing the limb if blood sugar levels and weight were not monitored, which automatically meant that the patient should have reduced on smoking. Considering this fact, if the toe removal was the only option, I find that Ostrowski was also negligent by failing to take the necessary precautions required to improve her own health. It is always important to follow medical advice especially when one is aware of the consequences. The consequences would have been avoidable had she followed instructions and Azzara would not be guilty of negligence at all. In that context, I find both parties liable and hence accountable.
References
Eleanour Ostrowski v Lynn M Azzara, A-116 (Supreme Court of New Jersey August 11, 1988). Retrieved from http://www.hananisaacs.com/Significant-Cases/ostrowski_and_azzara.pdf
Galligan, T. (2010). Tort law: cases, perspectives, and problems. New York: LexisNexis.
