FILED
MEMORANDUM DECISION Jun 21 2016, 9:39 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), this Indiana Supreme Court
Court of Appeals
Memorandum Decision shall not be regarded as and Tax Court
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Edward L. Murphy, Jr. Jeffrey A. Clark
Andrew L. Palmison Michael A. Barranda
Rothberg Logan & Warsco LLP Burt, Blee, Dixon, Sutton & Bloom, LLP
Fort Wayne, Indiana Fort Wayne, Indiana
Karl L. Mulvaney
Nana Quay-Smith
Bingham Greenebaum Doll LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alan L. Stephens, M.D., and June 21, 2016
Summit Plastic Surgery Center, Court of Appeals Case No.
02A03-1505-PL-357
Appellants-Defendants,
Appeal from the Allen Superior
v. Court.
The Honorable Stanley A. Levine,
Judge.
Jamie Fazio, Cause No. 02D03-1306-PL-235
Appellee-Plaintiff.
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 1 of 31
Statement of the Case
[1] Alan L. Stephens, M.D., and Summit Plastic Surgery Center (collectively
“Stephens”) appeal from the trial court’s order on a motion for additur and
judgment on the evidence after a jury returned a verdict in favor of Stephens on
1
the issues of causation and damages in Jaime Fazio’s complaint. We reverse
and remand.
Issue
[2] Both parties seek review of the trial court’s judgment awarding damages to
Fazio. The dispositive issue, however, is whether the trial court erred by
granting Fazio’s motion, vacating the jury’s verdict, and entering judgment in
favor of Fazio for $8,847.00, the total cost of the procedures performed by
Stephens.
Facts and Procedural History
[3] In 2002, when Fazio was twenty-four years old, she had her first cosmetic
elective procedure under the care of Dr. Robert N. Severinac. After giving birth
to three children by that time and breastfeeding them, Fazio was unhappy with
the appearance of her post-baby body and sought to have procedures performed
to address the issues causing her displeasure. To that end, Fazio had a breast
lift and a bilateral breast augmentation with saline implants, in addition to a
1
Although the Appellants’ Brief makes reference to “Jamie” Fazio, the pleadings and other documents refer
to her as “Jaime” Fazio. We will refer to her as Jaime Fazio throughout this opinion.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 2 of 31
tummy tuck, tightening the skin of her lower abdomen. After the completion of
the procedures, Fazio was pleased with the results.
[4] In May 2011, Fazio graduated from nursing school. She had been employed by
Parkview Health since 2000, and in 2011, at the time of her graduation, was
employed by Parkview Behavioral Health as a mental health technician. Later
in 2011, she took a full-time nursing position at Parkview Regional Medical
Center as a “surgical/trauma/ICU” nurse. Tr. p. 48.
[5] After graduating from nursing school, Fazio decided to have additional,
elective cosmetic surgery performed to improve her appearance and to feel
better about herself. Over the course of the four to five years prior to that time,
although having a petite build at five feet in height, Fazio had gained
approximately seventy pounds, but lost the weight while going through the
dissolution of her marriage, stabilizing at 114 pounds. This fluctuation in
weight left her with sagging skin, loss of breast volume, and breasts that sat
lower than they had previously after her first elective, cosmetic surgery.
[6] Fazio had an initial consultation with Stephens on May 26, 2011. During that
consultation, Fazio expressed three areas of concern. First, she was displeased
with breast looseness including nipples that sagged below the inframammary
fold—the place where the breast and the chest meet. This condition is caused
by weight fluctuations, and will remain in patients who lack good elasticity in
the skin. If that is the case, and was with respect to Fazio, a form of skin
tightening procedure is needed to remedy the condition. Fazio, who had
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 3 of 31
frequently visited tanning salons on a long-term basis, and was a cigarette
smoker prior to undergoing the procedures, suffered from a decrease in her skin
elasticity as a result of both behaviors.
[7] Next, Fazio was concerned about the width or size of the areolas on both of her
breasts. During the initial consultation, Stephens noted that Fazio’s peri-
areolar scars from her first surgery performed by Severinac had healed well.
However, the nipple areolar complexes had fairly significant widening,
particularly on the right breast, which was consistent with the asymmetry of her
breasts and the laxity of her skin.
[8] The third area Fazio wanted to improve was her upper abdomen. Fazio had
skin laxity in her upper abdomen above her navel. The skin in the area of the
abdomen below her navel remained tight from the prior abdominoplasty, or
tummy tuck. However, her abdomen carried a scar from that prior procedure
across her lower stomach, just above her pubic bone.
[9] After discussing Fazio’s concerns and conducting a physical examination of
her, Stephens recommended the removal of Fazio’s aging breast implants, and
insertion of larger implants to improve the fill of Fazio’s breasts. He also
recommended a skin tightening procedure to lift Fazio’s breasts and diminish
the size of her nipple areolar complexes. Stephens further recommended a
mini-tummy tuck to tighten the skin of Fazio’s upper abdomen. Fazio left
Stephens’s office to consider the recommended procedures.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 4 of 31
[10] Fazio returned to Stephens’s office for a second visit on June 16, 2011.
Stephens repeated Fazio’s physical examination and noted that the condition of
Fazio’s breasts and abdomen had not changed. In order to allow for an
accurate post-operative evaluation of the results of the surgery, Stephens took
standardized pictures of Fazio’s breasts with her arms down at her sides. Those
pre-operative photographs along with Stephens’s measurements revealed that
Fazio’s breasts were not symmetrical, that the areolar complex on Fazio’s right
breast was abnormally large and oval in shape as compared to the areolar
complex in the left breast, which was two centimeters smaller and round in
shape. Also, Fazio’s right breast implant projected more in the upper half and
had a fuller slope than the left breast. Before leaving the office, Fazio scheduled
the recommended surgical procedures. She was given a post-surgical
instruction booklet and a consent form specifically addressing the procedures
that were scheduled. Fazio read and understood the information in the booklet.
[11] Stephens performed Fazio’s surgery on June 29, 2011. He removed Fazio’s old
saline implants and inserted new, slightly larger implants in the breast capsules,
or scar tissue pockets, which developed after Fazio’s first implants were inserted
by Severinac. Stephens adjusted the amount of excess skin on Fazio’s right
breast because it was asymmetrical and lower than her left breast. He also
made an incision around each nipple areolar complex to reduce their size,
further tightening Fazio’s loose breast skin.
[12] In order to perform the upper tummy tuck, Stephens made twelve centimeter
incisions underneath each breast in order to gain access to and tighten the loose
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 5 of 31
abdominal skin at the top of Fazio’s abdomen. Stephens chose the location of
the incisions for a couple of reasons. His goal was to hide the incisions
underneath Fazio’s breasts as they fell naturally. Also, in order to avoid stress
on the implants, the incision had to be placed on the firm soft tissue just
underneath the breasts to anchor the upper abdominal skin. Placement any
higher in the breast capsule, which holds the implants, would result in pulling
down the breasts, which would be contrary to Fazio’s goal. Stephens
concluded that Fazio’s incisions needed to be placed there because she had very
thin breast capsules and her skin was going to continue to stretch over time.
[13] After inserting drains, Stephens re-evaluated the results of Fazio’s breast lift
prior to closing the sutures. He decided that because the left breast continued to
have less projection than the right, he would increase the projection by adding
twenty-five milliliters of saline into the implant. Fazio was discharged later that
day with a prescription for narcotic pain medication and a muscle relaxer.
When Stephens’s staff contacted Fazio the following day, they confirmed with
her that the drains were functioning and that Fazio had no problems with her
incisions.
[14] Fazio’s first post-operative visit was on July 5, 2011, six days after her surgery.
Stephens examined Fazio and determined that she had no abnormal
discoloration, no bleeding, and no signs of infection. He did note that there
was more fullness in the upper part of Fazio’s right breast, which he attributed
to the additional surgical work required to correct the specific issues with
Fazio’s right nipple complex. He determined that the fullness in the right breast
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 6 of 31
was nonetheless within the realm of normal post-operative change and
difference.
[15] Fazio reported that she was experiencing mild pain, but had made the personal
decision three days prior to stop using the pain medications, despite the pain
relief provided by them, because she did not like the way the medication made
her feel otherwise. She informed Stephens she had also gone shopping with a
friend the day before her first post-operative appointment. Based on all of the
information he gathered from this visit, Stephens determined that Fazio was
doing well, had good pain relief, and characterized the visit as a routine post-
operative visit.
[16] Before Fazio left that day, Stephens reinforced his written post-operative
instructions to take it easy, directing her to engage in only light activities. He
also instructed Fazio to return for another follow-up appointment in three
weeks, which was the standard amount of time between visits, to determine if
there was a decrease in swelling and to monitor any new issues with pain that
might arise in the course of her post-operative recovery. Fazio was instructed to
follow Stephens’s verbal and written instructions with respect to her post-
operative care in order to promote healing without unnecessary delay. She was
also instructed to follow the schedule of post-operative appointments.
[17] Among the specific instructions she was given was the instruction to protect her
surgical scars from sunlight for a year after surgery, since sunlight could damage
her skin—even through a bathing suit. She was explicitly instructed to
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 7 of 31
continuously wear a specialized support bra twenty-four hours a day for the first
two weeks following surgery. After that period of time had passed, she was
instructed to wear it at all times when she was awake, during the period of post-
operative healing. Use of the bra was important to Fazio’s post-operative
recovery because it served as a “dressing” to hold the breasts and implants in
the perfect position. Joint Exhibit Book, Tab 8, p. 16.
[18] Fazio was also instructed to be patient with the healing process and that the
ability to heal varies on a number of factors including genetic background,
overall state of health, and lifestyle. Further, she was told that her cooperation
in the healing process was extremely important and in her best interest.
[19] An additional warning given to Fazio was that she might experience breast
asymmetry as she healed. The post-operative booklet specifically advised her as
follows:
Asymmetry: It is quite common for the two breasts to heal
differently. One may swell more, one may feel more
uncomfortable, or the shapes may differ initially. After complete
healing, they should look remarkably similar and natural.
Patience is required, but if you are concerned, ask questions of
Dr. Stephens or the nursing staff.
Id. at p. 20.
[20] Instead of waiting for her next, scheduled, follow-up appointment, which was
to occur three weeks after the July 5, 2011 first post-operative visit, Fazio
returned to Stephens’s office on July 14, 2011, to express her displeasure with
and anger about the asymmetry of her breasts. Fazio arrived at the office
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 8 of 31
wearing a strapless, sleeveless, terry-cloth cover-up dress, supported by a
strapless, underwire “push up” bra, a clothing choice that did not comport with
explicit instructions to wear the support bra, and which Stephens characterized
as an “unusual” choice of clothing for a post-operative patient. Tr. pp. 225,
228. Fazio testified that she was embarrassed by the looks she received from
others in the waiting room while waiting for that appointment. Fazio claimed
that she wore the clothing to accentuate the post-operative asymmetry and to
“showcase” her results to Stephens. Id. at 72. Stephens, who was alerted in
advance by his staff about Fazio’s unpleasant demeanor at this visit, did not
recall her offering that explanation for her clothing choice. Stephens did agree
there was asymmetry, but disagreed, however, that remedial measures were
required at that very early stage of Fazio’s recovery—just nine days after her
first, post-operative visit.
[21] Stephens tried to reassure Fazio that the post-surgery asymmetry was normal,
especially at that stage of her recovery. However, Fazio, who was upset,
demanded a free surgery to repair it. Stephens recommended that Fazio refrain
from having any surgery so soon after the procedure, that she allow the
implants to settle into place, and that she allow her body to have time to heal.
He explained why he believed the asymmetry existed and also told her what
options were available if corrective action was necessary. Stephens told Fazio
that she should refrain from wearing the underwire bra she was wearing that
day because it, unlike the support bra, which was the post-operative directive,
was not giving her the kind of support her body needed at that time to heal.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 9 of 31
[22] Stephens directed Fazio to use an ace-bandage-type velcro strap to wrap around
the upper half or upper poles of her breasts and to wear it twenty-four hours a
day. Stephens believed that at two weeks post-surgery, Fazio could now use the
strap to help the implants settle into position and to reduce the swelling in her
breasts without compromising the healing of the incisions underneath her
breasts. He stressed that the more the strap was used, the more effective it
would be, but that it could take weeks or months for the swelling to reduce
given the amount of surgery Fazio had undergone, particularly with the repairs
to her right breast.
[23] After this office visit, Fazio admitted she wore the strap for only a couple of
hours each of the two days she decided to use it, removing it and making the
personal choice to discontinue its use altogether because she thought it was
uncomfortable. Fazio did not communicate this information to Stephens or his
staff.
[24] The week after this visit, she went to Florida for a six-day vacation, going to the
beach and staying in the sun wearing a two-piece bathing suit during this trip.
A week later, after returning home from that trip, Fazio left for a week-long
cruise. She stated that she was not out in the sun very much at all on that trip,
but did wear her bathing suit for a little more than three hours while on a shore
excursion during the cruise. Fazio also continued tanning at the two local
tanning salons where she held memberships.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 10 of 31
[25] Fazio never returned for a follow-up appointment with Stephens. Instead,
Fazio chose to consult with Severinac shortly after returning from her second,
post-operative trip, her cruise.
[26] During her August 8, 2011, consultation with Severinac, her main complaint
about her physical appearance was asymmetry of her breasts—that the right
breast implant sat higher than the left. In his notes, Severinac observed that
there was a two to three centimeter difference in the height of the implants, and
described this as asymmetry and mal-position. At trial, Severinac stated that
Fazio’s asymmetry had already diminished since her last appointment with
Stephens, three weeks prior, based upon his review of the pre-operative
photographs taken by him that day, and photographs Fazio had someone take
on July 14, 2011, the same date she made her last visit to Stephens’s office.
[27] At Fazio’s request, Severinac performed a minor revision surgery on Fazio’s
right breast under local anesthetic on August 16, 2011. After that procedure, he
described to Fazio what he had done. According to Fazio, Severinac explained
that he made a three centimeter incision through Stephens’s prior incision to
adjust the right breast capsule, or “pull the implant down and put it in the breast
pocket” and removed approximately thirty ccs or six teaspoons of saline from
the right implant to make the breasts symmetrical. Tr. p. 88. At trial, Severinac
testified that the procedure was not medically necessary, but was one option he
used when a patient was upset about results. Another option was to use the
strap Stephens had instructed Fazio to use. Fazio paid $1,950.00 to Severinac
for the procedure.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 11 of 31
[28] Another of Fazio’s complaints involved the location of the scar under her left
breast. She expressed no concern over the location of the scar under her right
breast, but believed the incision under the left breast sat slightly lower and was
visible when she wore her bikini. Severinac observed that the scar could
possibly be elevated to a more hidden position under the mammary fold, but
noted that Fazio had skin laxity issues. He agreed that after viewing his pre-
operative photographs, the scar under the left breast was not visible under the
breast fold. Severinac indicated that he would not surgically adjust the scar
until a year had passed because scars can improve and fade over time and that
healing depends upon the patient’s compliance with post-operative instructions.
Both Stephens and Severinac agreed and testified that the scars under Fazio’s
breasts were not visible when her arms were down by her sides. Prior to the
time of trial, Fazio had obtained a quote of $1500 from Severinac for scar
revision surgery but had not chosen to undergo the procedure.
2
[29] On June 27, 2013, Fazio filed a complaint for damages against Stephens,
claiming that she was Stephens’s patient and the medical care or treatment she
received was negligent and below the appropriate standard of care. More
specifically, her complaint alleged as follows:
COMES NOW the Plaintiff, Jaime C. Fazio (“Plaintiff”), and for
her Complaint for Damages against the Defendants, Summit
2
Because the amount of claimed damages did not exceed $15,000.00, Fazio did not first submit a proposed
complaint to the Department of Insurance. See Ind. Code § 34-18-8-6 (1998).
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 12 of 31
Plastic Surgery Center and Dr. Alan L. Stephens, M.D.
(collectively, “Defendants”), states as follows:
1. That Plaintiff was a patient of the Defendants in and around
June and July of 2011, and received medical care and/or
treatment from said Defendants.
2. Said medical care or treatment rendered by Defendants was negligent
and below the appropriate standard of care.
3. That as a proximate result of the negligence of the Defendants,
the Plaintiff has incurred injury, emotional damages, medical
expenses, additional medical treatment, related expenses, lost
wages, and/or intangible damages of a nature as to require
compensation.
4. Plaintiff’s Complaint is brought pursuant to Indiana Code §
34-13-8-6 as an action in which Plaintiff seeks damages in an
amount not greater than $15,000.00.
WHEREFORE, the Plaintiff, Jaime C. Fazio, respectfully prays
for an award against the Defendants in an amount that will fairly
and fully compensate Plaintiff for all losses, injuries and
damages, for the costs of this action, and for all other just and
proper relief.
Appellants’ App. p. 19 (emphasis added).
[30] On July 10, 2013, Stephens filed an answer denying negligence and denying
that the medical care provided to Fazio was below the appropriate standard of
care. Stephens also asserted Fazio’s contributory negligence as an affirmative
defense.
[31] In her response to certain designated interrogatories, Fazio stated as follows:
INTERROGATORY NO. 10: State specifically each and every
act of negligence alleged against each Defendant alluded to in the
Complaint.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 13 of 31
ANSWER: Objection, discovery is ongoing. Dr. Stephens did a
poor job placing implants and suturing incision. I believe Dr.
Stephens is an agent of Summit Plastic Surgery Center.
...
INTERROGATORY NO. 33: Do you plan to use any expert
testimony in this case?
ANSWER: At the present time, the Plaintiff has not yet retained
an expert witness in this matter. Ms. Fazio will comply with all
court orders regarding the filing of witness lists and disclosure of
expert witness information. Once this information is determined,
this answer will be supplemented.
INTERROGATORY NO. 34: If the answer to foregoing
interrogatory is affirmative, please state:
a) Name and address;
b) Name and address of his/her employer or the organization
with which he/she is associated in any professional capacity;
c) The field in which he/she is associated in any professional
capacity;
d) A summary of his/her qualifications within the field in which
he/she is expected to testify;
e) The substance of the facts to which he/she is expected to
testify;
f) The substance of the opinions to which he/she is expected to
testify and a summary of the grounds for each opinion; and
g) State the dates of all reports rendered by such experts, and the
name and address of all persons receiving same.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 14 of 31
ANSWER: N/A
Id. at 39-41.
[32] On October 7, 2013, Stephens filed a motion for summary judgment
designating: 1) the pleadings; 2) Fazio’s answers to Interrogatory Nos. 10, 33,
and 34; and 3) Stephens’s affidavit, to which he attached a booklet explaining
the risks of the surgical procedures Fazio was considering (each page initialed
by Fazio and signed and dated on the last page), and a signed and fully
executed informed consent form designed specifically for Fazio and her
particular procedures dated June 29, 2011.
[33] The informed consent form provided that normal symptoms after surgery
included moderate swelling and bruising, as well as mild to moderate
discomfort or pain, but that severe swelling and bruising indicative of a problem
could occur and that severe pain should be reported to Stephens and his staff.
Id. at 47. The form also noted the increased risk of poor healing for smokers.
Id. at 48. The form explicitly provided as follows under the heading
“Unsatisfactory Result & Need For Revisional Surgery”:
All Plastic Surgery treatments and operations are performed to
improve a condition, a problem or appearance. While the
procedures are performed with a very high probability of success,
disappointments occur and results are not always acceptable to
patients or the surgeon. Secondary procedures or treatments may
be indicated. Problems may occur that are permanent.
POOR RESULTS: Asymmetry, unhappiness with the result,
poor healing, etc. may occur. Minimal differences are usually
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 15 of 31
acceptable. Larger differences frequently require revisional
surgery.
Id.
[34] The informed consent form further provided with respect to “Explanation of
Breast Prosthesis With Secondary Augmentation Mammoplasty”:
ASYMMETRY: If your breasts had slightly different shapes
before surgery, they may remain slightly different after surgery.
Rarely, in spite of careful attention to detail, the dissected pockets
may end up slightly different in shape or height. If this is not
noted while you are in surgery, but becomes a problem after
healing, you may later need a small adjustment procedure.
Id. at 50.
[35] Regarding the breast lift procedure, the informed consent booklet provided as
follows under the heading “Standard Mastopexy (Breast Lift):
INCISIONS (SCARS): Using the standard technique for this
procedure, you will have scars around the areola, in a vertical
line from the areola to the crease below the breast, and
horizontally in the crease. The scars usually flatten and fade with
time, but thicker and heavier scars can persist and require
subsequent treatment, including surgery. For some reason, the
scars extending toward the axilla (underarm area) are frequently
thicker and heavier than those elsewhere. Redness of the scars
may continue to fade for up to 2 years.
....
ASYMMETRY: Mastopexy operations involve very careful
planning and execution in order to achieve complete symmetry
and a natural look for each breast. Because the planning of this
operation combines “art” and “science,” it is not always possible
to predict perfect and equal breast shapes. Should you have
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 16 of 31
slight asymmetry after healing, a small subsequent operation
usually solves the problem.
....
POOR RESULTS: Asymmetry, unhappiness with breast size,
poor healing, unequal nipple height, etc. may occur. Minimal
differences are usually acceptable. Larger differences frequently
require revisional surgery.
Id. at 51-52.
[36] Regarding the reverse abdominoplasty, or mini-tummy tuck, Stephens’s notes
revealed as follows:
She has skin laxity of the abdominal wall, primarily in the upper
abdomen and epigastric area. We settled on a reverse
abdominoplasty procedure through the inframammary incisions
in order to help further smooth the upper abdomen. I reviewed
the operation with her. She understands problems can occur
with surgery such as bleeding, infection, thick scars, permanent
sensation changes, seroma formation and she wishes to proceed
with the operative plan.
Joint Exhibit Book, Tab 1, p. 40.
[37] The Estimate of Surgical Fees provided to Fazio by Stephens for the three
procedures itemized the costs and also included the following language: “Fees
quoted do not include revisions, hospital stays or excess fees due to complications.” Joint
Exhibit Book, Tab 1, p. 25 (emphasis added).
[38] Stephens’s affidavit included his account of the patient-physician relationship,
information that had been provided to Fazio, and the two post-operative visits.
He stated that it was his understanding that Fazio “believes I did a poor job
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 17 of 31
placing her implants and suturing her incision.” Appellants’ App. p. 45. He
further stated that in his opinion he had met the appropriate standard of care
with respect to Fazio’s treatment despite her displeasure with the immediate
results.
[39] Stephens’s affidavit, which was designated in support of his motion, further
states in paragraph 13 as follows:
In my opinion, and based upon my review of the medical
records, as well as my education, experience, and training, my
treatment of Ms. Fazio was within the standard of care at all
times. It was appropriate for me to describe the potential post-
operative complications, which included asymmetry and
malposition, and to allow Ms. Fazio to decide whether she
wished to proceed.
Id.
[40] The memorandum in support of Stephens’s motion noted that Fazio had not
identified expert opinion to rebut Stephens’s opinion that he met the applicable
medical standard of care. Stephens argued that without that contradictory
expert testimony he was entitled to summary judgment because absent that
expert testimony there was no genuine issue of material fact about whether
Stephens had breached his duty to Fazio by engaging in conduct falling below
the applicable standard of care. The motion also sought summary judgment in
favor of Summit, arguing that Summit was named as a defendant in the cause
of action under an agency theory, respondeat superior, but there were no
independent allegations of negligence as to Summit in Fazio’s complaint.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 18 of 31
[41] On December 9, 2013, Fazio filed her response to Stephens’s motion for
summary judgment and asserted her own cross-motion for partial summary
judgment, alleging that while some medical malpractice claims require expert
testimony, other cases may proceed without expert testimony where the
information is commonly known and understood by laypersons. Fazio claimed
for the first time that her case was the latter because she had the following
criticisms of Stephens’s treatment: 1) he improperly described the procedure as
being performed in and along the crease of her breast where scars could not be
seen; 2) Stephens failed to provide Fazio with information indicating an
acceptable outcome was a mal-positioned implant causing long-term pain; and
3) Stephens failed to inform Fazio that she would incur charges associated with
any remediation procedures associated with such poor outcomes. She sought
partial summary judgment on liability. In support of her response and motion
for partial summary judgment, Fazio designated the following: 1) the
pleadings; 2) Stephens’s deposition at pages 10, 12, 18-22, 26, 33, 34, 39, 40-43;
3) Fazio’s affidavit; and 4) Fazio’s deposition in its entirety. A copy of an
unsigned booklet explaining the risks of the surgical procedures was attached as
an exhibit to Fazio’s affidavit.
[42] On January 13, 2014, Stephens filed his reply in support of his motion for
summary judgment and response in opposition to Fazio’s cross-motion for
partial summary judgment. Stephens alleged that Fazio had designated no
expert testimony to support her claim, and that there was not enough evidence
to support her cross-motion for partial summary judgment. The evidence he
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 19 of 31
designated was: 1) his deposition at page 11 and page 21; and 2) his second
affidavit.
[43] In this second affidavit, Stephens described the procedures he performed at
Fazio’s request and the reasoning behind the particular techniques used. He
also stated that issues such as tissue reaction factors, the physiological effects of
lifestyle, health, and heredity on the elasticity of a patient’s skin, and the expert
analysis involved in evaluating the specific outcome of plastic surgery were not
within the common knowledge of laypersons.
[44] On January 14, 2014, the trial court held oral argument on the parties’ motions.
In its order dated February 18, 2014, the trial court made a preliminary ruling
that the nature of Fazio’s complaint was informed consent. The trial court
explained as follows:
As a threshold matter, the Court must decide if Ms. Fazio’s claim
is better characterized as one alleging a lack of informed consent,
or one alleging that Dr. Stephens was negligent in his
performance of the surgery upon Ms. Fazio. After reviewing Ms.
Fazio’s Motion for Partial Summary Judgment, the Court
concludes that Ms. Fazio’s claim is one centered on informed
consent. Ms. Fazio clearly articulates three complaints against
Dr. Stephens, all of which focus on the contention that Dr.
Stephens did not properly inform her of the surgery she was to
undergo. Additionally, Ms. Fazio explicitly states in her Motion
for Partial Summary Judgment that Ms. Fazio “does not care to
challenge Dr. Stephens’ belief as to what he thinks is or is not an
acceptable outcome for a surgeon under these or similar
circumstances. Rather, the sole issue simply hinges on an
undisputed factual issue: whether Dr. Stephens disclosed the
procedure and outcomes that he contends were proper in this
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 20 of 31
case.” Thus, the Court takes Ms. Fazio’s claim for what she
purports it to be—an informed consent claim.
Id. at 248-49.
[45] Stephens, however, had responded to the complaint under the theory of
negligence in the performance of surgery. Despite noting the obvious
conflicting positions of the parties the trial court based its determination of the
nature of the complaint on the arguments presented for the first time in Fazio’s
cross-motion for partial summary judgment. Id. at 248-49. In that motion she
contended her three main criticisms of Stephens’s treatment centered on the
issue of informed consent. Citing Bowman v. Beghin, 713 N.E.2d 913 (Ind. Ct.
App. 1999), the trial court determined that no expert testimony was necessary
to prove Fazio’s informed consent claim, and, thus, denied Stephens’s motion
for summary judgment.
[46] The trial court then turned to the designated materials in support of and in
opposition to Fazio’s cross-motion for partial summary judgment. Although
Stephens had designated the signed and initialed booklet explaining the risks of
the surgical procedures Fazio was considering (each page initialed by Fazio and
signed and dated on the last page), and a signed and fully executed informed
consent form in support of his own motion for summary judgment, he did not
specifically designate that evidence in opposition to Fazio’s motion.
[47] In granting Fazio’s motion for partial summary judgment on the issue of
liability, the trial court observed that Stephens had failed to designate evidence
that Fazio was informed that an acceptable outcome was a mal-positioned
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 21 of 31
implant causing long term pain, or that she was informed she would incur
additional charges associated with any possible remediation. The trial court
further found that Stephens had not designated evidence to contradict Fazio’s
claim that he improperly described the procedure as being performed in and
along the crease of her breast where scars could not be seen.
[48] Stephens filed a motion asking the trial court to reconsider its ruling on
summary judgment or to certify its opinion for interlocutory appeal. After
holding a hearing on the request, the trial court issued an order on April 11,
2014, denying Stephens’s motion.
[49] Stephens filed another motion for summary judgment, this time arguing the
affirmative defenses of contributory negligence and assumption of the risk.
Stephens contended that Fazio’s failure to follow his post-operative instructions
constituted contributory negligence and that her understanding of the possible
surgical outcomes after having read and understood the informational booklet
constituted assumption of the risk. After holding a hearing on the motion and
taking the matter under advisement, the trial court denied the motion, finding
that the prior ruling on liability precluded a determination of contributory
negligence. The trial court concluded, however, that the topic of Fazio’s failure
to follow her post-operative instructions could be introduced at trial on the issue
of Fazio’s failure to mitigate damages. The parties and the trial court agreed
that the issues of causation and damages from Fazio’s lack of informed consent
had not been resolved by way of the summary judgment ruling. Those issues
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 22 of 31
were left to be resolved at trial. Stephens’s motion requesting certification of
the order for interlocutory appeal was denied.
[50] Stephens and Fazio each filed motions in limine prior to trial. Fazio’s motion
sought to exclude all references to issues which were decided on summary
judgment. Stephens contended that he was entitled to prove that his alleged
failure to inform Fazio of certain surgical risks was not the cause of her claimed
damages. Stephens also argued that he should be allowed to question witnesses
about causation, and show that Fazio did not suffer damages from her lack of
informed consent. He also sought an order allowing him to introduce evidence
to prove that if fully informed, Fazio would have had the surgery and that a
reasonable person would have done the same. No written order addressing or
deciding these motions appears in the record.
[51] The trial court gave Preliminary Instruction Numbers 5, 7, and 8, which limited
and defined the issues to be decided by the jury. The jury was instructed that
they were to decide: 1) whether Stephens’ failure to obtain Fazio’s informed
consent was the responsible cause of her injuries and damages; 2) the nature
and extent of Fazio’s injuries and damages; 3) whether Fazio failed to mitigate
her damages; and 4) the amount of money, if any, which would fairly
compensate Fazio for the injuries and damages she suffered. Appellants’ App.
p. 459. The jury was informed that the trial court had already determined that
Stephens did not inform Fazio that: 1) an acceptable outcome was a mal-
positioned implant; 2) she could have visible scarring from the procedure; and
3) a revision procedure might be necessary, for which she would be financially
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 23 of 31
responsible. They were instructed that Fazio would have rejected the surgical
procedure performed by Stephens had she been informed of those risks. At the
conclusion of the trial, the jury was given Final Instruction No. 8, which
informed them that Fazio had a duty to follow Stephens’s instructions to
mitigate her damages.
[52] The two-day jury trial began on April 7, 2015. Stephens sought a directed
verdict at the conclusion of Fazio’s case-in-chief, arguing that Fazio had failed
to offer expert testimony to prove she suffered damages from her lack of
informed consent. After the trial court denied Stephens’s motion, Stephens
made an offer of proof on the issue of informed consent. Stephens tendered his
affidavit with Fazio’s signed and initialed informed consent form. He also
tendered: 1) an informed consent document Fazio had signed in April 2002,
after consulting with Dr. Matthew Shambaugh of Summit Plastic Surgery, P.C.;
2) the informed consent document Fazio executed in May 2002 after consulting
with Severinac, in which the issue of the patient’s responsibility for additional
costs associated with secondary surgery, and the possible outcomes of
asymmetry with pain and scarring were addressed; and, 3) the informed consent
form Fazio executed in August 2011, after consulting with Severinac. The trial
court denied Stephens’s offer of proof and refused to admit the evidence on the
ground that the issue of Fazio’s informed consent had been determined by way
of its prior summary judgment order.
[53] At trial, Fazio was asked for what injury or damages she was seeking
compensation. She agreed that the only existing injury was in relation to the
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 24 of 31
left side scar, and that she was not seeking any other type of compensation for
anything else done by Stephens. Tr. p. 96. Fazio stated that she wanted to
have Severinac perform the procedure to attempt to raise the location of the
scar under her left breast. However, she did not believe that she could afford it
and she wanted to wait until after the trial because “we had taken photos to
show that it was still an issue today and that it had not gotten any better.” Id. at
94.
[54] After the close of evidence, the trial court instructed the jury. The jury returned
a verdict in favor of Stephens and the trial court entered judgment on the
verdict. Later, Fazio filed a motion for additur and judgment on the evidence
in her favor. The trial court treated the request as a motion to correct error.
The trial court vacated the jury’s verdict and entered judgment in favor of Fazio
for the amount of $8,847.00. The trial court concluded there was “no evidence
to support a verdict for Defendants awarding no damages” because the trial
court had previously concluded that the undisputed evidence showed Fazio
would not have undergone the surgery had she known of the risks. Appellants’
App. p. 17. Stephens now appeals, seeking to have the jury’s verdict reinstated
or a new trial.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 25 of 31
Discussion and Decision
Motion to Correct Error
[55] Stephens claims that the trial court should not have granted Fazio’s motion to
correct error because there is sufficient evidence to support the jury’s verdict in
his favor.
[56] Indiana Trial Rule 59(J)(5) allows a trial court, in the case of excessive or
inadequate damages, to enter final judgment on the evidence for the amount of
proper damages. This remedy is available only where the evidence is
insufficient as a matter of law to support the jury’s verdict. Carbone v. Schwarte,
629 N.E.2d 1259, 1261 (Ind. Ct. App. 1994). On review, we use the same
standard as the trial court; namely, we consider only the evidence and
reasonable inferences favorable to the non-moving party, and we may not
weigh conflicting evidence or judge the credibility of witnesses. Id.
Furthermore, a damage award must be within the scope of the evidence
presented to the jury. Id.
[57] The trial court’s order included a reference to Final Instruction 7, which reads
in pertinent part as follows:
This Court has already determined that:
1. Dr. Stephens performed a bilateral explanation of breast
prosthesis with second augmentation mammoplasty, a
bilateral full standard mastopexy, and a procedure to
revise a prior abdominoplasty;
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 26 of 31
2. Dr. Stephens had a duty to inform Plaintiff, Jaime Fazio,
of important facts concerning treatment. Specifically, Dr.
Stephens had a duty to inform Plaintiff:
a. That an acceptable outcome was a mal-positioned
implant;
b. That she could have visible scarring from the
procedure; and
c. That a revision procedure might be necessary, for
which she would be financially responsible.
3. Dr. Stephens did not inform Jaime Fazio of these facts;
4. That Jaime Fazio would have rejected the surgical
procedures performed by Dr. Stephens had she been
informed of the risks set forth above.
....
Therefore, the issues to be decided by you are as follows:
1. Whether the failure to obtain Jaime Fazio’s informed
consent by Dr. Stephens was the responsible cause of
injuries and damages to the Plaintiff, Jaime Fazio;
2. The nature and extent of Plaintiff’s injuries and damages;
3. Whether the Plaintiff failed to mitigate her damages; and
4. The amount of money, if any, which would fairly
compensate the Plaintiff, Jaime Fazio, for the injuries and
damages she suffered.
3
Appellants’ App. pp. 474-76.
3
For the first time on appeal, Stephens also attacks the trial court’s order granting partial summary judgment
in favor of Fazio because she failed to present or designate evidence that a reasonable person if properly
informed would have declined to have surgery. A party may not raise a new argument for the first time on
appeal. Art Country Squire, L.L.C. v. Inland Mortg. Corp., 745 N.E.2d 885, 892 n.3 (Ind. Ct. App. 2001).
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 27 of 31
[58] The trial court noted “undisputed” evidence that Fazio underwent surgical
treatment performed by Stephens, that she would not have undergone the
surgery had she been properly informed of the risks, and that she paid $8,847.00
to Stephens for the surgery. Id. at 17. The trial court also found that there was
no evidence to support a verdict for Stephens awarding no damages to Fazio,
and that such an award was not within the scope of evidence presented to the
jury, or based upon the instructions read to the jury. Id. Additionally, the trial
court noted that after reviewing the evidence, it was apparent that the amount
of damages was so small that it indicated the jury was motivated by prejudice,
passion, partiality, corruption, or that it considered some improper element. Id.
The award was inadequate, according to the trial court, because it failed to
compensate Fazio for “actual, undisputed medical expenses directly attributable
to undergoing surgery.” Id.
[59] The jury was also given Final Instructions Nos. 8, 11, and 12 prior to
deliberating, which read in pertinent part as follows:
The Plaintiff must use reasonable care in following a plastic
surgeon’s instructions after being treated to assist in her recovery.
In this case, Defendants Dr. Stephens and Summit Plastic
Surgery Center claim that Plaintiff, Jaime Fazio, did not use
reasonable care in following Dr. Stephens’s instructions. If you
decide that Plaintiff is entitled to damages and you also decide
that Defendants have proven the following by the greater weight
of the evidence:
1. Plaintiff, Jaime Fazio, failed to follow reasonable
instructions that Dr. Stephens gave after the alleged act of
medical negligence; and
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 28 of 31
2. A person using reasonable care in the same or similar
circumstances would have followed Dr. Stephens’s
instructions; and
3. Plaintiff, Jaime Fazio’s failure to follow the instructions
was a responsible cause in contributing to her damages,
then you should reduce the amount of money you would
otherwise award Plaintiff, Jaime Fazio, by the value of the
damages you decide resulted from her failure to follow
instructions.
....
If you decide from the greater weight of the evidence that the
failure to obtain Plaintiff Jaime Fazio’s informed consent by
Defendant Dr. Stephens was the responsible cause of injuries and
damages to the Plaintiff, Jaime Fazio, then you must decide the
amount of money that will fairly compensate Plaintiff. In
deciding the amount of money you award, you may consider:
1. The nature and extent of Plaintiff’s injuries;
2. Whether Plaintiff’s injuries are temporary or permanent;
3. The physical pain and mental suffering Plaintiff has
experienced and will experience in the future as a result of
the injuries;
4. The reasonable value of necessary medical care, treatment,
and services Plaintiff incurred and will incur in the future
as a result of the injuries; and
5. The disfigurement resulting from the injury.
....
In deciding what amount, if any, to award Plaintiff, Jaime Fazio,
in damages, you must base your decision on the evidence and not
on guess or speculation. However, damages need not be proven
to a mathematical certainty.
Id. at 477, 480, 481.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 29 of 31
[60] The evidence most favorable to Stephens, the non-moving party, shows that
Fazio failed to follow several of the post-operative instructions. She did not
wear the support bra or use the velcro strap as directed, and spent time in the
sun within weeks of her surgery. Although it was not medically necessary,
surgery under Severinac’s care was conducted to re-position Fazio’s right
implant within months of the surgery completed by Stephens. Fazio did not
return for further post-operative appointments with Stephens and did not allow
him the opportunity to correct whatever injuries Fazio had sustained. At trial,
Fazio claimed that the only remaining injury for which she was seeking
compensation was the scar under her left breast. Stephens and Severinac
testified that when Fazio’s arms were hanging down by her sides, the scars
under her breasts were not visible.
[61] Further, the trial court gave the jury two verdict forms from which to choose. If
its ruling on liability truly foreclosed any option of a defense verdict, then the
trial court erred by giving the jury that option.
[62] The jury was instructed that they were to determine the nature and extent of
Fazio’s injuries, and the reasonable value of necessary medical care, treatment,
and services Fazio incurred and will incur in the future as a result of the
injuries. There was evidence that Fazio failed to mitigate her damages. Thus,
there was sufficient evidence adduced at trial to support the jury’s verdict in
favor of Stephens and the zero damages award was within the scope of the
evidence. Therefore, the trial court erred by vacating the jury’s verdict and
awarding damages to Fazio.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 30 of 31
Conclusion
[63] In light of the foregoing, we find that the trial court erred by vacating the jury’s
verdict and entering judgment in favor of Fazio and awarding her damages.
We remand this matter to the trial court to reinstate the jury’s verdict in favor of
Stephens.
[64] Reversed and remanded.
Kirsch, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-PL-357 | June 21, 2016 Page 31 of 31