Joyner-Wentland v. Waggoner
| Citation | 890 N.E.2d 730 |
| Decision Date | 17 July 2008 |
| Docket Number | No. 49A02-0710-CV-878.,49A02-0710-CV-878. |
| Parties | Monica JOYNER-WENTLAND, M.D., Appellant-Defendant, v. Pamela J. WAGGONER, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Jon M. Pinnick, Donald B. Kite, Sr., Schultz & Pogue, LLP, Indianapolis, IN, Attorneys for Appellant.
Caroline A. Gilchrist, Baker & Gilchrist, P.C., Avon, IN, Attorney for Appellee.
Monica Joyner—Wentland, M.D. ("Dr. Joyner—Wentland") appeals a jury verdict in favor of Pamela J. Waggoner ("Waggoner") in a medical malpractice case arising from Dr. Joyner—Wentland's failure to order a pre-surgery mammogram before breast augmentation surgery. Dr. Joyner—Wentland raises the following restated issue: whether the trial court abused its discretion in failing to give her tendered final jury instructions on contributory negligence given Waggoner's admission that she provided incorrect information regarding the date of her last mammogram prior to her surgery.
We affirm.1
On May 15, 2002, Waggoner went to the office of Dr. Joyner—Wentland for an initial plastic surgery consultation. Waggoner specifically sought information regarding a mastopexy, also known as a breast lift. When she arrived, Waggoner filled out various forms, including a demographic information sheet, a medical history form, and forms relating to financial policies. In her paperwork, Waggoner stated that her primary care physician was Dr. James Myers. Dr. Myers was actually her OB/GYN, and her primary care physicians were Drs. Pizzato and Maynard. After finishing the paperwork, Waggoner met with Amy Schwab, a certified surgical technician/patient care coordinator. During this meeting, Waggoner advised Schwab that her last mammogram had been in May 2000 and that it had been normal. Ex. Vol. III, Joint Stipulated Ex. 2 at 12. Waggoner also told Schwab that she was fifty years old, smoked one pack of cigarettes per day, and did not have breast asymmetry, a history of breast cysts or masses, or a family history of breast cancer. Id. Although Waggoner reported the correct location of her most recent mammogram and the physician who ordered it, she was incorrect about the date. The mammogram had been performed in 1997, not 2000.
After speaking with Schwab, Waggoner was examined by Dr. Joyner—Wentland. The doctor physically examined Waggoner's breasts, took measurements, and lifted the breasts to show how they would look after the surgery. Dr. Joyner—Wentland told Waggoner that she would need implants to make her breasts look proper and explained the surgery, along with potential risks and complications. Dr. Joyner—Wentland did not order a mammogram for Waggoner on this date or at a subsequent pre-surgery appointment on May 28, 2002 because Waggoner had reported that she had undergone a mammogram in May of 2000 and because she reported having a primary care physician, whose purview it was to order such a test. Tr. at 623.
On June 4, 2002, Dr. Joyner—Wentland performed breast surgery on Waggoner. During the surgery, Dr. Joyner—Wentland discovered some tissue in Waggoner's right breast (a little over a centimeter in size) that felt firmer than the surrounding tissue. The doctor removed the tissue and sent it to pathology and then completed the surgery. When Dr. Joyner—Wentland met with Waggoner two days after the surgery, she did not advise Waggoner that suspicious tissue had been removed from her breast. On June 20, 2002, after receiving a pathology report confirming that the removed tissue was cancerous, Dr. Joyner—Wentland notified Waggoner of the removal and result. This was the last time that Dr. Joyner—Wentland saw Waggoner.
Shortly thereafter, on August 6, 2002, Waggoner saw Dr. Kathy Miller, an oncologist at the Indiana University Medical Center, specializing in the diagnosis and treatment of breast cancer. Dr. Miller told Waggoner that they "were in a difficult situation because of the very high likelihood that additional tumor was left in the breast." Id. at 471. Dr. Miller also stated that because Waggoner had not had a mammogram before her surgery, there was no way to know where in the breast the remaining cancer cells might have been, so there was no choice but to recommend a mastectomy. Id. at 471-72.
On October 15, 2002, Dr. Robert Goulet performed a mastectomy and lymph node dissection. Because Dr. Joyner—Wentland had not changed her gloves and the tumor had been transected during the original breast surgery, Dr. Goulet had to address his concern that part of the breast as well as the incisions had the potential to be "involved with tumor cells." Id. at 317. He therefore performed a mastectomy that removed the skin from the lower half of the breast, which included all of the incisions from Waggoner's previous plastic surgery; this procedure in turn affected the reconstruction process. Plastic surgeon Dr. Rajiv Sood began reconstruction of Waggoner's right breast in conjunction with Dr. Goulet's surgery.
The second stage of the reconstruction process occurred on July 15, 2003. At that time, Dr. Sood placed a permanent implant in Waggoner's right breast and redid the left mastoplexy in order to match both sides. At follow-up visits after the surgery, Dr. Sood was concerned about possible infection, delayed healing of Waggoner's wounds, and skin necrosis (skin death). On October 22, 2003, Waggoner was hospitalized because of a possible implant infection. Subsequently, Waggoner underwent further reconstruction in September 2004, February 2005, February 2006, and May 2006.
Waggoner filed a complaint against Dr. Joyner—Wentland on September 8, 2005, alleging that the doctor was negligent in failing to order a pre-surgery mammogram, performing the surgery incorrectly, and managing her post-operative care. Prior to this filing, a medical review panel was formed to review the case, and reached the following opinion on June 30, 2005: "The panel is of the unanimous opinion that the evidence supports the conclusion that the defendant failed to comply [with] the appropriate standard of care by not obtaining a timely mammogram report, but that it cannot be determined whether that was a factor of any resultant damage." Ex. Vol. I, Pl.'s Ex. 1. A jury trial was held on Waggoner's complaint on September 11 through September 14, 2007. Prior to trial, and again at the close of all evidence, Dr. Joyner—Wentland tendered her proposed final jury instructions to the trial court, which included the following two instructions on contributory negligence:
Final Jury Instruction No. 6
The patient has a duty to exercise reasonable care in providing the defendant with accurate and complete information. If the defendant has proved by a preponderance of the evidence each of the following:
(1) The plaintiff failed to provide accurate and complete information to the defendant;
(2) A reasonable prudent person in the same or similar circumstances would have provided accurate and complete information to the defendant; and
(3) The plaintiff's failure to provide accurate and complete information to the defendant proximately caused plaintiff's injury;
Then your verdict should be for the defendant.
The question of contributory negligence by the plaintiff is an issue in this case. Contributory negligence is the failure of a plaintiff to use reasonable care. If the plaintiff's negligence proximately contributed to her injury or damage, then the plaintiff cannot recover even though the defendant may have been negligent. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff was negligent.
Appellant's App. at 31, 33. The trial court refused to give these two instructions over the objection and argument of Dr. Joyner—Wentland. At the conclusion of the trial, the jury returned a verdict in favor of Waggoner and awarded damages in the amount of $1,315,000, which was later remitted to the statutory cap of $1,250,0002 upon the doctor's motion. Dr. Joyner—Wentland now appeals.
"[T]he purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict." Estate of Dyer v. Doyle, 870 N.E.2d 573, 581 (Ind.Ct.App.2007), trans. denied. We review a trial court's decision to give or refuse a tendered instruction for an abuse of discretion. Bailey v. State Farm Mut. Auto. Ins. Co., 881 N.E.2d 996 1005 (Ind.Ct.App.2008). When reviewing a trial court's decision to give or refuse a tendered instruction, we consider whether the instruction (1) correctly states the law, (2) is supported by the evidence in the record, and (3) is covered in substance by other instructions. Id. (citing Wal—Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind.2002)). "Even if a trial court abuses its discretion in refusing to give an instruction, such a refusal `is not presumed fatal and will constitute reversible error only when substantial rights have been adversely affected.'" Id. (quoting Hoosier Ins. Co. v. N.S. Trucking Supplies, Inc., 684 N.E.2d 1164, 1173 (Ind.Ct.App.1997)).
"The Indiana Comparative Fault Act replaced the defense of contributory negligence, which completely bars a plaintiff from any recovery, with a system providing for the reduction of a plaintiff's recovery in proportion to the plaintiff's fault. . . ." Cavens v. Zaberdac, 849 N.E.2d 526, 529 (Ind.2006). The Act, however, does not apply to cases alleging medical malpractice and, instead, preserved contributory negligence as a medical malpractice defense. Id. A plaintiff is contributorily negligent when her conduct falls below the standard to which she should conform for her own protection and safety. McSwane v. Bloomington Hosp. and Healthcare Sys., 882 N.E.2d 244, 255 (Ind.Ct.App.2008). Contributory negligence is the failure of a person to exercise for her own safety...
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