The Court of Appeals of Virginia stated in its January 30, 2024 published opinion: “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.”
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.
On January 26, 2016, Butts-Franklin underwent further surgery and stayed in the hospital for 11 days, during which she underwent 2 additional surgeries to clear an 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 her Virginia 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.”
The trial judge denied defendants’ requested jury instruction relating to Butts-Franklin’s duty to mitigate her damages, stating, “The theory that you’re arguing, I think, is more of a causation issue.”
Duty To Mitigate Damages
The Court of Appeals of Virginia stated, “The duty to mitigate damages serves an important function. “[W]ithout a mitigation rule, plaintiffs would have a perverse incentive to sit back and let their damages mount, even though they
could stanch the loss by exercising reasonable care.” Id. at 3-59. “Mitigation doctrine—by forcing plaintiffs to act as if their losses were not insured—encourages plaintiffs to reduce the societal costs of their injuries.” Id. “It is only incumbent upon [the plaintiff], however, to use reasonable exertion and reasonable expense . . . .””
“If the plaintiff’s injury occurs because the plaintiff failed to exercise reasonable care contemporaneously or concurrently with the negligent act of the defendant, it constitutes contributory negligence that bars the plaintiff’s recovery … By contrast, and “[u]nlike contributory negligence, the plaintiff’s duty to mitigate damages arises only after the defendant’s tortious conduct.””
“Defendants here have intermixed the concepts of contributory negligence and failure to mitigate. Defendants argue that the post-operative infection that Butts-Franklin suffered occurred because Butts-Franklin soaked her hand in violation of her post-operative instructions … Having intentionally abandoned a contributory-negligence defense, defendants cannot recover it through the backdoor of a mitigation instruction. True, a mitigation-of-damages defense
need not be pleaded in the answer. But the facts here, even in the light most favorable to defendants, did not show that Butts-Franklin failed to mitigate damages that were caused in the first instance by defendants’ malpractice. Defendants concede there is no evidence in the record to show when Butts-Franklin soaked her hand during the period in question. Defendants thus fail to explain how Butts-Franklin’s supposed hand-soaking aggravated or exacerbated damages caused by their own negligence.”
“Without knowing when the soaking occurred, it would be “speculative and conjectural,” Sawyer, 264 Va. at 76, whether such soaking was the initial cause of the infection, which could have supported a contributory-negligence defense had one been pleaded; whether the soaking occurred after defendants’ malpractice, an essential element of the failure-to-mitigate defense; or whether it occurred after the sutures were removed, thereby barring a failure-to-mitigate defense under Monahan. In short, defendants’ concession that the record does not permit the Court to determine when Butts-Franklin soaked her hand is fatal to their appeal. We conclude that there was not “sufficient evidence in this record t[o] . . . permit the jury to find as a matter of fact that [Butts-Franklin] failed to mitigate h[er] damages.” Sawyer, 264 Va. at 77. Thus, the trial court did not abuse its discretion by refusing to grant defendants’ duty-to-mitigate instruction.”
Source Rodrigue, M.D. v. Butts-Franklin, Record No. 1521-22-1.
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