Lasley v. Moss
| Decision Date | 30 August 2007 |
| Docket Number | No. 06-3152.,06-3152. |
| Citation | 500 F.3d 586 |
| Parties | Angelica LASLEY and William G. Lasley, Plaintiffs-Appellees, v. John A. MOSS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jerry A. Garau (argued), Findling, Garau, Germano & Pennington, Indianapolis, IN, for Plaintiffs-Appellees.
Milford M. Miller (argued), Miller Murphy & Miller, Fort Wayne, IN, for Defendant-Appellant.
Before EASTERBROOK, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
Angelica Lasley sued Dr. John A. Moss in Indiana state court for medical malpractice, claiming that Dr. Moss failed to reasonably disclose to her the available options for treating her thyroid condition and the risks associated with surgery. William G. Lasley, Angelica's husband, sued Dr. Moss for loss of consortium. Following removal to federal court on diversity grounds, the case was submitted to a jury, which found in favor of Mrs. Lasley on her medical malpractice claim and in favor of Dr. Moss on Mr. Lasley's consortium claim. Dr. Moss now appeals, challenging the district court's rejection of a jury instruction that he had tendered to the court. He also challenges the district court's decision to grant the Lasleys' motion for judgment as a matter of law on Dr. Moss' defense that Mrs. Lasley failed to mitigate her damages. We affirm.
In January of 1998, Mrs. Lasley's family physician referred her to Dr. Moss, a board certified otolaryngologist, for treatment of her hyperthyroidism, a condition where the thyroid gland becomes enlarged and produces excess thyroid hormone. Dr. Moss removed Mrs. Lasley's thyroid gland in January of 1999. Prior to surgery Mrs. Lasley signed a written consent form acknowledging that "the nature and purpose of the operation, possible alternate methods of the treatment and risks involved and the possible complications" were explained to her. During the thyroidectomy, Mrs. Lasley suffered permanent injury to her recurrent laryngeal nerve, injury to her parathyroid glands, and scarring. The injury to Mrs. Lasley's recurrent laryngeal nerve caused vocal cord paralysis with significant vocal impairment and swallowing difficulties with aspiration.
Following surgery, Mrs. Lasley saw Dr. Moss on four occasions, during which time her vocal range increased from a faint whisper to a hoarse whisper. Unhappy with her post-surgery progress, Mrs. Lasley decided not to attend her July 1999 appointment with Dr. Moss. Instead, she received her thyroid and calcium medications from her family physician and was referred to Dr. Richard Biggerstaff, another otolaryngologist. Dr. Biggerstaff examined Mrs. Lasley in November of 1999 and found that Mrs. Lasley's calcium levels were unbalanced and that her thyroid levels were low. Dr. Biggerstaff referred Mrs. Lasley to an endocrinologist, who subsequently managed and continues to manage Mrs. Lasley's thyroid medication and calcium levels. Dr. Biggerstaff also recommended that Mrs. Lasley have another surgery to repair her paralyzed vocal cord. In March of 2000, Mrs. Lasley had the surgery, which improved her voice quality.
In January of 2005, Mrs. Lasley filed suit against Dr. Moss for medical malpractice, claiming that Dr. Moss had breached his duty to disclose to her the material facts relevant to her decision to undergo surgery. At trial, both sides presented evidence on whether Dr. Moss gave Mrs. Lasley complete and accurate information regarding her treatment and alternatives to that treatment. Mrs. Lasley testified that in December of 1998, she asked Dr. Moss whether she could have her hyperthyroidism treated non-surgically by undergoing radioactive iodine ("I133") treatments. She also testified that Dr. Moss told her that the effects of I-133 treatments were uncertain and that the treatments could cause birth defects in future children.
Dr. Moss testified that he had discussed and explained to Mrs. Lasley her treatment options, including taking medicine, receiving I-133 treatments, or removing the thyroid gland surgically. Dr. Moss also told Mrs. Lasley that it was his opinion that, regardless of whether she received the I-133 treatments, she would need the surgery because of the size of her thyroid goiter. He did not explain to Mrs. Lasley that the size of her thyroid gland increased the risk of complications from surgery. Dr. Moss denied telling Mrs. Lasley that the effects of I-133 could cause birth defects. He did admit that he had told Mrs. Lasley that he was worried that "20 years down the road [I-133 treatments] might cause some harmful effects, such as cancer, leukemia, or lymphoma." Four physicians testified that there is no evidence that I-133 treatments cause such problems. The physicians also testified that Dr. Moss' statement regarding the I-133 treatments violated the standard of care because it provided Mrs. Lasley with inaccurate information regarding her treatment options.
After both sides rested, Dr. Moss tendered a jury instruction seeking to inform the jury that there was a rebuttable presumption that Mrs. Lasley's written consent was an informed consent. Dr. Moss proposed jury instruction was based on IND.CODE § 34-18-12-2 (1998), which states:
If a patient's written consent is:
(1) signed by the patient or the patient's authorized representative;
(2) witnessed by an individual at least eighteen (18) years of age; and
(3) explained, orally or in the written consent, to the patient or the patient's authorized representative before a treatment, procedure, examination, or test is undertaken;
a rebuttable presumption is created that the consent is an informed consent.
The district court refused to give Dr. Moss' proposed instruction. Instead, the district court instructed the jury that Mrs. Lasley was required to prove by a preponderance of the evidence that Dr. Moss had a duty to inform her of important facts concerning alternative treatments for her thyroid disease and of the risks of surgery; that Dr. Moss breached that duty to her by not informing her of those facts; that a reasonable person in the same or similar circumstances as her would not have consented to surgery had she been informed of those facts; and that Dr. Moss' breach of duty proximately caused her injury. The jury returned a verdict in favor of Mrs. Lasley.
On appeal, Dr. Moss presents two arguments. First, he argues that the district court erred by not giving the jury his rebuttable presumption instruction. Second, he contends that the district court erred in granting judgment as a matter of law in favor of the Lasleys on Dr. Moss' failure to mitigate defense. We will address each issue in turn.
Our review of jury instructions is limited. Doe v. Burnham, 6 F.3d 476, 479 (7th Cir.1993). We construe jury instructions in their entirety in order to determine whether as a whole the instructions were sufficient to inform the jury correctly of the applicable law. Trytko v. Hubbell, Inc., 28 F.3d 715, 725 (7th Cir.1994) (citations omitted). A district court is not required to issue a perfect set of jury instructions; however, the issued instructions must be correct legal statements...
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