A physician should not be totally immune from liability in cases in which the patient's contribution to the harm suffered was as great as the person whom contributed to it. In this case, I feel that there were factors that both sides neglected to handle so that the procedure that was done would be a success. There were testing (vascular testing) that could have been done to determine if the patient was in a good enough condition to be able to go through the surgery that was used to remove the diseased toenail that was infected. The jury found Dr. Azzara acted negligently by removing Ms. Ostrowski's toenail without adequate consideration of her vascular condition (Ostrowski v. Azzara 545 A.2d 148 (1988) Summary). I also feel that Dr. Azzara should have made sure that there was a review of the patients’ internal medicine records from her internist for her diabetes and blood pressure problems.
The patient was at fault by not following up with her internist about her high sugar levels and hypertension that were determined by testing by Dr. Azzara. It is difficult to heal when there are high sugar and high blood pressures problems going on after surgery. Also smoking slows down the healing process in patients that have had recent surgery or injuries. Nicotine, which is in cigarettes, causes blood vessel constriction, reducing blood supply to the skin. When doctors perform a surgery, the incisions that are left may reduce normal blood flow to the area that is being worked on. (http://www.realself.com/question/cosmetic-plastic-surgery-how-does-smoking-affect-healing-scarring). The patient was given adequate pre-surgery risk and complication disclosures before she signed her consent form for surgery. Another option for the patient was to get a second opinion on what was going on with her toe. Getting a second opinion on the toe could have reassured the dignosis by Dr. Azzara or shed new light on other problems the Ms. Ostrowski may have had. Even though this case was reversed later and remanded for a new trial( health law) by The Supreme Court of New Jersey, Judge O'Hern, J., held that: (1) post treatment conduct of patient may be submitted to jury on question of whether mitigation or apportionment of damages can be expressed in terms of patient's fault, but patient's fault will not be a bar to recovery except to the extent that her fault caused damages; (2) trial court's instructions failed to distinguish between preoperative and postoperative conduct which could serve only to mitigate her damages as opposed to conduct which could serve to avoid any recovery; and (3) trial court's instruction improperly permitted jury to bar patient entirely from recovery of damages that were attributable to physician. (http://www.rongolini.com/casesumm.htm#Ostrowski).
Doctors like patients are human and they make mistakes. The comparative negligence on both sides caused the mishaps that happened in this case. Dr. Azzara knew of the complications that this patient may go through after the surgery, and by the book did not recommend any stop smoking treatments and did not get a hold of internist office that was treating Ms. Ostrowski. This could have helped the doctor to control or treat the blood sugar and blood pressure problems. The patient’s lack of compliance with her pre-treatment and post-treatment contributed to some of the issues which resulted in the decision by Dr. Azzara had to remove of the toenail. Second guessing of treatment is easy to do after a mishap happens. In my opinion, not a single physician in the world would think that they will have patient who is totally compliant with all instructions given. As patient, we have to responsiblty for our health to and follow up with problems that we have.