Background
On January 7, 2016, Loretta Butts-Franklin had wrist surgery to treat carpal tunnel syndrome. The surgery was seemingly straightforward, and the incision was closed with four sutures. Dr. Tina Rodrigue told Butts-Franklin to return to have the sutures removed in ten days. Dr. Rodrigue instructed her not to soak the incision. Butts-Franklin also received discharge papers instructing her to keep the incision dry and not soak it.
Post-Surgical Infection
At trial in 2023, Butts-Franklin testified that her wrist began to look red and inflamed soon after the surgery. She repeatedly called the surgeon’s office but was not told to come in. The medical assistant, Chelsea Smith, testified that Butts-Franklin did not report any signs of infection. Smith did not record notes of the calls but testified that Butts-Franklin was calling about pain medication. Butts-Franklin denied this and testified that she asked to see the surgeon.
Conflicting Accounts, But No Notes
Smith and Butts-Franklin reported different accounts of the follow-up visit, which happened seven to ten days post-surgery. Butts-Franklin complained that Smith had left a suture in her wrist. Smith reported that another medical assistant came into the room to look at Butts-Franklin’s wrist, which Butts-Franklin denied. No one at the surgeon’s office made any notes about the visit.
Following this appointment, the infection on Butts-Franklin’s wrist worsened. She experienced increasing pain, swelling, and oozing. She continued to call the office, asking to speak with the surgeon. She testified that Smith told her that her wrist was fine.
On January 22, Butts-Franklin went to an emergency room. ER doctors diagnosed the infection, prescribed antibiotics, and discharged her the next morning. On January 25, Butts-Franklin called Dr. Rodrigue’s office, told Smith about the ER visit, and scheduled an appointment for the next day. On January 26, Dr. Rodrigue recommended immediate follow-up surgery. In the first notes since the date of surgery, Dr. Rodrigue wrote that Butts-Franklin had made excessive pain complaints. Dr. Rodrigue’s notes also stated that no infection was noted at the suture removal and that Butts-Franklin had been soaking her wrist.
Three Follow-Up Surgeries
Butts-Franklin had follow-up wrist surgery on January 26, requiring an 11-day hospital stay. She needed two additional surgeries to clear the infection and permanently lost mobility in her hand. The medical bills totaled around $183,000. She sued Dr. Rodrigue for medical malpractice action. She sought damages to cover her medical bills and pain and suffering, and loss of mobility.
At the four-day jury trial, the defense and plaintiffs relied on testimony from medical experts, including neurosurgeons. Two defense experts testified that Butts-Franklin’s soaking her wrist contributed to the extent of the infection, based on Dr. Rodrigue’s notes from January 26. However, no witnesses testified as to when Butts-Franklin had supposedly soaked her wrist.
At the close of evidence, the defense requested that the trial judge instruct the jury that Butts-Franklin had a duty to mitigate her damages and that if her actions had increased the damages, she could not recover the increased amount. The trial judge denied the instruction. In making the decision, he remarked that the defense’s theory that Butts-Franklin soaked her wrist and worsened the infection was an issue of causation and proximate cause, not damages. The jury was not instructed on any duty or failure to mitigate and returned a $1.18 million verdict for Butts-Franklin.
At a post-trial hearing, the defense argued that the trial court’s refusal to issue the instruction was a reversible error. The court denied the motion. The defense appealed, represented by Ronald P. Herbert of Harman, Claytor, Corrigan & Wellman, PC. The plaintiff-appellant was represented by Paul Warren of Warren PLC.
Appeals Court Analysis
In considering Dr. Rodrigue’s appeal, the Virginia Court of Appeals contrasted the affirmative defenses of contributory negligence and failure to mitigate.
The Court pointed to the temporal and pleading distinctions between contributory negligence and failure to mitigate. If the defense asserts a contributory negligence defense in a medical malpractice case, it must show that the plaintiff’s negligence was contemporaneous with the physician’s alleged negligent act. The defense must also be raised in the answer. In this case, Dr. Rodrigue presented no evidence as to when Butts-Franklin may have soaked her wrist and had not raised a contributory negligence defense. The defense had reserved the right to raise a contributory negligence defense but had never asked to amend the answer to raise it.
In contrast, a failure to mitigate defense does not need to be raised in the answer. However, it can only be used to lessen damages if the defense can show that the plaintiff’s actions made the initial malpractice injury worse.
Fatal Lack of Evidence
In Virginia, the standard of review for a refusal to grant a jury instruction is whether there is more than a “scintilla” of evidence to support the defendant’s theory of the case as it relates to the proposed instruction. This evidence is viewed in the light most favorable to the proponent of the instruction.
In this case, the Court held that the defense theory of the case did not align with a failure to mitigate instruction because of the lack of evidence presented. Without any evidence presented that Butts-Franklin soaked her wrist, let alone when it may have occurred, the Appeals Court found that the trial court did not err in denying the failure to mitigate instruction. In particular, because Butts-Franklin had been instructed not to soak her wrist before the sutures were removed, but not after, the lack of evidence on timing was fatal to a failure to mitigate defense.
Takeaways for Attorneys
In litigating medical malpractice actions, establishing the timing of events is critical both in establishing the theory of the case and invoking any potential affirmative defenses.
