In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3152
ANGELICA LASLEY and WILLIAM G. LASLEY,
Plaintiffs-Appellees,
v.
JOHN A. MOSS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 05 C 107—Larry J. McKinney, Chief Judge.
____________
ARGUED MARCH 30, 2007—DECIDED AUGUST 30, 2007
____________
Before EASTERBROOK, Chief Judge, and BAUER and
WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. 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 condi-
tion 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
2 No. 06-3152
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 miti-
gate her damages. We affirm.
I. Background
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 in-
jury 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 swallow-
ing 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 ex-
amined 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 man-
No. 06-3152 3
aged and continues to manage Mrs. Lasley’s thyroid
medication and calcium levels. Dr. Biggerstaff also recom-
mended 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 regard-
ing 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 (“I-
133”) 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 sur-
gery 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
4 No. 06-3152
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 instruc-
tion 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 prepon-
derance of the evidence that Dr. Moss had a duty to in-
form her of important facts concerning alternative treat-
ments for her thyroid disease and of the risks of surgery;
that Dr. Moss breached that duty to her by not inform-
ing 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.
No. 06-3152 5
II. Discussion
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 con-
tends 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.
A. Jury Instruction
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 and must convey the
relevant legal principles in full. Byrd v. Ill. Dep’t of Pub.
Health, 423 F.3d 696, 705 (7th Cir. 2005) (citations
omitted). We will reverse “only if the instruction misguides
the jury so much that a litigant is prejudiced.” Burnham,
6 F.3d at 479. Because we must apply state law to mat-
ters of substantive law when exercising diversity juris-
diction, the propriety of Dr. Moss’ tendered instruction is
controlled by Indiana law. Trytko, 28 F.3d at 725 (citation
omitted). Here, reversal would be warranted only if
Dr. Moss demonstrated that his proposed instruction
was a correct statement of Indiana law and that the
district court’s refusal to give his instruction caused him
prejudice.
Although Dr. Moss’ proposed instruction provided an
accurate recitation of IND. CODE § 34-18-12-2, it failed to
6 No. 06-3152
provide a complete statement of Indiana law. Section 34-
18-12-2 does not stand alone. Section 34-18-12-3 provides
that the explanation given in accordance with § 34-18-12-
2(3) must include the following information to create
informed consent:
(1) The general nature of the patient’s condition.
(2) The proposed treatment, procedure, examination,
or test.
(3) The expected outcome of the treatment, procedure,
examination, or test.
(4) The material risks of the treatment, procedure,
examination, or test.
(5) The reasonable alternatives to the treatment,
procedure, examination, or test.
IND. CODE § 34-18-12-3 (1998). Before a rebuttable pre-
sumption is created under § 34-18-12-2, the party assert-
ing the presumption must show that the patient was
provided an explanation of the information required by
§ 34-18-12-3. In order to provide a complete statement
of law, Dr. Moss’ proposed instruction had to include
both §§ 34-18-12-2 and 3. Because Dr. Moss’ tendered
instruction failed to convey the relevant legal principles
in full, it was properly rejected. The district court properly
instructed the jury on informed consent: Mrs. Lasley
bore the burden of proving that Dr. Moss had breached
his duty to disclose to her the material risks of and
alternative treatments to the thyroidectomy.
B. Mitigation of Damages
We review a district court’s decision to grant judgment
as a matter of law de novo. Zimmerman v. Chicago Bd. of
Trade, 360 F.3d 612, 623 (7th Cir. 2004). Judgment as a
matter of law is appropriate only “[i]f during a trial by
jury a party has been fully heard on an issue and there
No. 06-3152 7
is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue. . . .” FED. R. CIV.
P. 50. In considering a Rule 50 motion, a court must view
the evidence in the light most favorable to the non-moving
party and must draw all reasonable inferences in that
party’s favor. Zimmerman, 360 F.3d at 623.
The affirmative defense of failure to mitigate damages
“addresses conduct by an injured party that aggravates or
increases the party’s injuries.” Willis v. Westerfield, 839
N.E.2d 1179, 1187 (Ind. 2006) (citation omitted). When
asserting such a defense, the defendant must prove by a
preponderance of the evidence that (1) plaintiff failed to
exercise reasonable care to mitigate his or her post-injury
damages; and (2) plaintiff ’s failure to exercise reasonable
care caused the plaintiff to suffer an identifiable item of
harm not attributable to the defendant’s negligent con-
duct. Id. at 1188.
Dr. Moss raised the failure to mitigate damages defense
based on Mrs. Lasley’s decision not to seek treatment
from him between July and November 1999. He contends
that because he was not given the opportunity to make
medication adjustments during these five months, he
should not be responsible for Mrs. Lasley’s physical pain
or mental suffering related to this time period. There
is insufficient evidence to support Dr. Moss’ failure to
mitigate damages defense. The evidence offered at trial
established that Mrs. Lasley exercised reasonable care in
mitigating her post-injury damages. She followed-up with
Dr. Moss after her surgery on four separate occasions.
Mrs. Lasley decided to stop seeing Dr. Moss because
she was unhappy with her post-surgery progress. This
decision was reasonable, as were Mrs. Lasley’s subse-
quent actions. After discontinuing her treating with
Dr. Moss, Mrs. Lasley received a referral to another
otolaryngologist. She also had her family physician
monitor and refill her thyroid and calcium medications
8 No. 06-3152
until she was able to visit with Dr. Biggerstaff in Novem-
ber of 1999.
Because Dr. Moss was unable to prove that Mrs. Lasley
acted unreasonably in deciding to seek treatment from
other physicians, the district court did not err in granting
the Lasley’s motion. The evidence supports the conclu-
sion that Mrs. Lasley would not have suffered her
injuries—vocal cord paralysis, parathyroid injury, and
scarring—had she been treated with I-133 treatments
instead of surgery. It further supports that her efforts
to mitigate damages were reasonable and about all that
could be expected.
For the foregoing reasons, we AFFIRM.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-30-07