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Mackenzie C. Monaco Wins at Trial Defending $700k Medical Malpractice Claim


Hernandez v. Podiatric Surgeon

Saratoga County Supreme Court

Defendant, a Podiatric Surgeon

Attorneys for the Defendant:
Mackenzie C. Monaco, Esq.
Gina A. Wisniewski, Esq.

Plaintiff’s Jury Demand:

Jury Verdict for the Defendant


The plaintiff, a 67-year-old man, brought this medical malpractice action following treatment by the defendant, a podiatric surgeon.  The plaintiff claimed that the defendant deviated from the standard of care during an injection into his inter-metatarsal space, specifically that the defendant pulled on the end of his second toe causing his toe to dislocate. The plaintiff claimed that the dislocation caused a permanent injury to his foot. 

Ms. Wisniewski made pre-trial motions to preclude the plaintiff’s wife from testifying as to what the plaintiff told her occurred during the subject injection and to substantially limit the plaintiff’s experts’ testimony, each of which were granted in their entirety.

At trial, the plaintiff testified that he treated with the defendant after being referred by his primary care physician due to pain in the bottom of his left foot.  Over the course of 10 weeks, the plaintiff treated with the defendant on four occasions.  He alleged that during his first visit with the defendant, that the doctor pulled on his 2nd toe during the administration of a cortisone, causing a dislocation of the toe. The plaintiff presented two defendant expert witnesses, a podiatric surgeon and a radiologist.  They testified that if the plaintiff’s version of events were taken as true, that the defendant podiatrist deviated from accepted standards of podiatric care in the administration of such an injection.

On defense, the defendant testified that when he first treated the plaintiff, he presented with a history of pain in the ball of his foot following a period of walking in ill-fitting shoes.  An x-ray was ordered which revealed the presence of hammertoe. On exam, there was evidence of neuroma in the 2nd interspace.  The defendant diagnosed hammertoe and Morton’s neuroma. He recommended a treatment of cortisone to decrease the inflammation and to address the neuroma and recommended that the plaintiff no longer wear tight, restricting footwear. The plaintiff consented to the injection, which the defendant administered to the top of the plaintiff’s foot between the 2nd and 3rd toes.  The defendant testified that he never touched or pulled on the plaintiff’s toes and that, as is his customary practice, his hand was located in front of the plaintiff’s ankle to hold the foot in place. The plaintiff returned to the defendant three times after that, receiving one additional cortisone shot on his third visit.  On this last visit, the plaintiff reported that he was much improved and in minimal pain.  Ms. Monaco presented an expert witness board-certified in podiatric surgery, who testified that not only did the defendant’s care meet and exceed the acceptable standards of care, but that the dislocation was subsequently caused by the progression of hammertoe.  The defense expert opined that there was simply no evidence of an acute/traumatic dislocation, as the plaintiff’s described.

Following deliberations, the jury returned a verdict in favor of the defendant.