Proposed Contributory Negligence Instruction Denied in Indiana Medical Malpractice Case
In an interesting case decided this past July, the Indiana Court of Appeals held that instructions on contributory negligence were not warranted where the plaintiff had failed to correctly disclose her mammogram history to her doctor before undergoing breast augmentation surgery.
In Joyner-Wentland vs. Waggoner, the plaintiff brought a medical malpractice suit against her doctor after she failed to order a mammogram before performing breast augmentation surgery on her. In her initial plastic surgery consultation, the plaintiff stated her last mammogram had come back clear and that it had been taken two years prior, when it had actually been five years prior. As a result, the defendant plastic surgeon proceeded with plaintiff's augmentation surgery. While operating, the defendant discovered the plaintiff was suffering from breast cancer and ultimately, the surgery caused plaintiff's cancer condition to significantly worsen.
On appeal, the Indiana Court of Appeals found there to be "overwhelming" evidence that plaintiff's untruthfulness as to the date of her last mammogram did not contribute to her injuries. It further explained that the standard of care was that mammograms should be performed annually for women over fifty years old and even though plaintiff misrepresented the date of her last mammogram, the information she presented the defendant with still called for a pre-surgery mammogram under the standard. Consequently, it held that the trial court did not abuse its discretion in prohibiting an instruction that plaintiff was contributory negligent in giving incorrect information on her pre-surgery intake form.
Joyner-Wentland v. Waggoner, 890 N.E.2d 730 (Ind. Ct. App. 2008).
