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Ostrowski v. Azzara | 111 N.J. 429, 545 A.2d 148 (1988)

Many doctrines assess fault and apportion damages for injuries with concurrent causes or contributing factors. The case of Ostrowski versus Azzara threads these ideas together when a medical-malpractice claim also involves the patient’s poor health habits.

Eleanor Ostrowski was a heavy smoker and diabetic that received treatment from Dr. Lynn Azzara for her irritated left big toe. Ostrowski had toe pain, calluses, leg cramps, burning feelings in her feet and legs, and hypertension. Azzara concluded Ostrowski had a nail fungal disease, incurvated toenails, decreased blood supply and circulation in her foot, peripheral vascular disease, and diabetes with very high blood sugar.

Azzara warned Ostrowski that these conditions could cause decaying tissue and loss of a limb if Ostrowski’s diabetes wasn’t controlled. Azzara told Ostrowski to see her internist to control the blood-sugar and circulation problems. Ostrowski contends this was just a suggestion.

Ostrowski told Azzara she had seen her internist, but she hadn’t. The toe was painful, red, and draining, so Azzara removed the toenail. Azzara reviewed with Ostrowski the risks of not treating the toe or getting surgery, including nonhealing and loss of limb. Ostrowski consented to the removal.

The toe healed slowly, as expected for a diabetic patient. Ostrowski was warned not to smoke because it could accelerate and aggravate her peripheral vascular disease, but Ostrowski continued to anyway.

Within a few months, Ostrowski’s toe had a discolored, pregangrenous wound with decaying tissue that wasn’t healing. Ostrowski claimed her doctors weren’t communicating with each other and failed to ensure Ostrowski’s blood flow could heal the wound. Ostrowski underwent three bypass surgeries to keep the wound from spreading and causing loss of the leg, and had a vein taken from her right leg and placed in her left to increase blood flow. This surgeon claimed the toenail removal was unnecessary and caused the bypass surgeries.

Ostrowski sued. The trial court found Azzara negligent but barred recovery because Ostrowski’s poor self-care pre- and posttreatment made her fifty-one percent at fault. Ostrowski appealed. The Appellate Division affirmed. The New Jersey Supreme Court granted certification. Between trial and review of the appeal, Ostrowski’s leg was amputated above the knee.

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