Rodrigue v. Butts-Franklin

79 Va. App. 645

896 S.E.2d 810

Tina C. RODRIGUE, M.D., et al.

v.Loretta BUTTS-FRANKLIN

Record No. 1521-22-1

Court of Appeals of Virginia, Norfolk.

January 30, 2024

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, Jerrauld C. Jones, Judge

Ronald P. Herbert (Harman, Claytor, Corrigan & Wellman, PC, on briefs), Richmond, for appellants.

Paul L. Warren (Warren PLC, on brief), for appellee.

Present: Chief Judge Decker, Judges Beales and Raphael

OPINION JUDGE STUART A. RAPHAEL

Following a four-day trial in this medical-malpractice case, the jury awarded Loretta Butts-Franklin $1,183,000 in damages against Tina C. Rodrigue, M.D., Chelsea Baker Smith, and Hampton Roads Neurosurgical Associates, P.C. (collectively, “defendants”). Defendants seek a new trial on the ground that the trial judge refused to instruct the jury on Butts-Franklin’s duty to mitigate her damages. Because defendants failed to show when Butts-Franklin’s alleged failure to mitigate occurred, let alone that it happened after defendants committed the medical malpractice alleged, we find no error and affirm the judgment.

Background

[1] When reviewing a trial court’s refusal to grant a jury instruction, we view the evidence in the light most favorable to the proponent of the instruction—here, the defendant medical professionals. See Watson v. Commonwealth, 298 Va. 197, 207, 835 S.E.2d 906 (2019); Holmes v. Commonwealth, 76 Va. App. 34, 52-53, 880 S.E.2d 17 (2022).

On January 7, 2016, Dr. Rodrigue-performed surgery on Butts-Franklin’s right wrist as a treatment for carpal tunnel syndrome. The surgery involved making an incision to the wrist, performing the procedure, and then closing the incision with four sutures. There were no complications during the surgery, and Butts-Franklin was discharged from the hospital the same day.

Before discharging Butts-Franklin, Dr. Rodrigue instructed her to return to the hospital in ten days to get her sutures removed. Dr. Rodrigue further instructed her to refrain from soaking her hand in water to reduce the risk of infection. A nurse provided Butts-Franklin with written discharge instructions that said, “Keep hand clean and dry until sutures removed; no soaking hand in water.”

Butts-Franklin testified that within three or four days of the surgery, her wrist was “warm” to the touch and red around the. incision area. She said she called Dr. Rodrigue’s office and spoke to Chelsea Smith, Dr. Rodrigue’s medical assistant, but because Butts-Franklin had an upcoming appointment, nothing happened. Smith testified that Butts-Franklin called multiple times, “every couple of days” between the surgery and the suture removal, asking for more or different pain medications, which Dr. Rodrigue refused to prescribe. Smith said that, although she did not record a note for each call, she reported each one to Dr. Rodrigue.¹ Smith testified that Butts-Franklin never reported during those calls that the , wound was “red, hot, foul smelling [or] swollen,” or anything else that would suggest infection. No follow-up visit was scheduled before the suture-removal visit.

About seven to ten days after the surgery, Butts-Franklin went to Dr. Rodrigue’s office to have the sutures removed.² Smith removed the sutures, noting that the wound was not infected or swollen. Smith saw “[n]othing out of the ordinary.” Smith removed all the sutures, though Butts-Franklin claimed there was still one suture left. Smith then got a physician’s assistant, Jamie Rogalla, to look at Butts-Franklin’s wrist. Rogalla did not find any remaining sutures,³ nor did she see any infection or redness. Butts-Franklin denied that anyone other than Smith saw her that day. Butts-Franklin left the office without a follow-up appointment scheduled.

Butts-Franklin testified that she called the next day and asked to see Dr. Rodrigue, but Smith told Butts-Franklin she did not need to see the doctor because her wrist was “fine.” In the following days, Butts-Franklin said that she continued to experience pain, increased swelling, and redness. She also noticed that her wrist “started to ooze at the incision and it didn’t smell right.” Butts-Franklin said that she called Dr. Rodrigue’s Office a couple more times over the following days, but again no follow-up visit was scheduled by Dr. Rodrigue. For her part, Smith testified that Butts-Franklin never mentioned any redness or pain symptoms during any call with Smith after the sutures were removed. Had Butts-Franklin mentioned those symptoms, Smith said she “would have immediately brought her in and told Dr. Rodrigue.”

On January 22, Butts-Franklin went to the Chesapeake Regional Medical Center emergency room seeking treatment for pain in her wrist. The doctors there diagnosed Butts-Franklin with an infection, prescribed antibiotics, and told her to follow up with. Dr. Rodrigue. Butts-Franklin was discharged from Chesapeake Regional Medical Center the next morning.

On January 25, Butts-Franklin called Dr. Rodrigue’s office to inform her of the emergency-room visit, spoke to Smith, and scheduled a follow-up appointment for the next day. Upon examining Butts-Franklin’s wrist, Dr. Rodrigue recommended immediate surgery to treat the infection. In a note dated January 26, Dr. Rodrigue wrote that Butts-Franklin “has had excessive pain complaints since the time of surgery,” and “[l]ast week, she had her sutures removed which was unremarkable and no problems were noted at the time of the suture removal.” Dr. Rodrigue added that Butts-Franklin “remarked that she had been soaking her hand at home.” Dr. Rodrigue testified that she wrote that note because Butts-Franklin told Dr. Rodrigue she had been soaking her hand to relieve her pain. Butts-Franklin denied soaking her hand in water during the 14 days after the surgery.

Butts-Franklin underwent surgery that night and stayed in the hospital for 11 days, during which she underwent 2 additional surgeries to clear the infection. Butts-Franklin ultimately recovered, but she lost significant use of her right hand. Her medical bills for the post-operative care totaled approximately $183,000. Butts-Franklin brought this medical malpractice action against defendants seeking to recover damages for her medical bills, pain and suffering, and loss of mobility in her wrist. The jury trial lasted four days.

Butts-Franklin argued at trial that the delay in diagnosing the infection between January 7 and January 26 resulted in the infection’s progressing to the point where she needed 3 additional surgeries and an 11-day hospital stay. Two expert witnesses for defendants testified, relying on Dr. Rodrigue’s January 26 note, that Butts-Franklin’s soaking her hand sometime between January 7 and January 26 caused or increased the severity of her infection. Neither pinpointed during that period, however, when the alleged soaking occurred. Dr. John Reavey-Cantwell, a neurosurgeon, explained that healthcare providers commonly instruct patients not to get surgical wounds wet because doing so increases the likelihood of infection. He concluded that Butts-Franklin increased the risk of her suffering the infection by soaking her hand in disregard of her post-operative instructions. Dr. John Sampson, also a neurosurgeon, testified that assuming Dr. Rodrigue’s January 26 note was correct and that Butts-Franklin had been “soaking her hand before that second surgery …, then that dramatically increased the risk of infection and also probably dramatically increased [the] … severity of the infection.”⁴

At the close of evidence, defendants requested the following jury instruction relating to Butts-Franklin’s duty to mitigate her damages: “Plaintiff has a duty to minimize her damages. If you find that the Plaintiff did not act reasonably to minimize her damages and that, as a result, they increased, then she cannot recover the amount by which they increased.” Defendants argued that the evidence relating to Butts-Franklin’s soaking her hand supported the theory that Butts-Franklin failed to mitigate her damages, meriting the proposed instruction.

The trial judge denied the instruction. The court explained, “I think the theory of [defendants’] case is that [Butts-Franklin] contributed to Her own injury by her alleged submersion of her wound, and I think it more relates to causation and proximate cause than it does to damages.” The trial judge further noted, “The theory that you’re arguing, I think, is more of a causation issue.”

The jury returned a verdict for Butts-Franklin and awarded her damages in the amount of $1,183,000, with prejudgment interest from February 1, 2016. Defendants moved to set aside the verdict, arguing that the trial court committed reversible error by refusing their mitigation instruction. At the posttrial hearing, defendants argued that they were entitled to a mitigation instruction because there was some evidence of plaintiffs failure to mitigate; they claimed that the trial court acknowledged as much by saying it was more of a proximate cause issue than a damages issue. Butts-Franklin responded that “[t]here is nothing temporally whatsoever as to when any alleged mitigation could have/should have occurred” and that the trial court correctly refused the instruction.

The trial court denied defendants’ motion and entered final judgment for Butts-Franklin on the jury verdict. Defendants noted a timely appeal.

Analysis

[2,3] Defendants argue that the trial court erred by refusing their proposed mitigation instruction because there was more than a scintilla of evidence that Butts-Franklin failed to mitigate her damages when she soaked her Hand sometime after the January 7 surgery. “A trial court’s decision whether to grant or refuse a proposed jury instruction is generally subject to appellate review for abuse of discretion.” Howsare . v. Commonwealth, 293 Va. 439, 443, 799 S.E.2d 512 (2017); Conley v. Commonwealth, 74 Va. App. 658, 675, 871 S.E.2d 640 (2022); But “[a] litigant is entitled to jury instructions supporting...