eNotes: Liability – March 2024 – Virginia

SIGNIFICANT CASE SUMMARIES

Virginia Case Summary

Rodrigue v. Butts-Franklin
Virginia Court of Appeals
No. 1521-22-1

Decided: January 30, 2024

Evidence that Plaintiff increased the likelihood of injury is not sufficient to warrant a jury instruction for Plaintiff’s failure to mitigate damages.

Background

In 2016, Dr. Rodrigue performed surgery on Butts-Franklin’s wrist. Following the surgery, Dr. Rodrigue instructed Butts-Franklin to return to the hospital in ten days to remove her sutures and advised against soaking her hand in water to reduce the risk of infection. After her sutures were removed, she continued to report pain and swelling, and sought treatment at the emergency room, where she was diagnosed with an infection. Dr. Rodrigue recommended immediate surgery, and noted in her notes that Butts-Franklin remarked that she soaked her hand after the surgery. Butts-Franklin underwent three additional surgeries and lost significant use of her right hand. She then brought suit for medical malpractice. At trial, Dr. Rodrigue argued that Butts-Franklin increased the likelihood of infection by soaking her hand.

Defendants requested the following jury instruction relating to Butts-Franklin’s duty to mitigate 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 Court denied the instruction, reasoning that the defense’s case revolved around contributory negligence and causation, not the mitigation of damages. Importantly, Defendants did not explicitly include contributory negligence in their pleadings. Defendants appealed, arguing there was “more than a scintilla” of evidence that Butts-Franklin failed to mitigate her damages when she soaked her hand.

Holding

The Court examined the difference between contributory negligence and mitigation of damages. It found that if the injury occurs because of the plaintiff’s failure to exercise reasonable care concurrently with the negligent act of the Defendant, it constitutes contributory negligence. It further found that a plaintiff’s duty to mitigate damages arises only after the defendant’s tortious conduct. Defendants argued that Butts-Franklin’s alleged hand-soaking was a proximate cause of the infection. Their argument resembled a contributory negligence argument, as opposed to a failure to mitigate. The Court found that Defendants, having not plead a contributory-negligence defense, could not recover it through the backdoor of a mitigation instruction. The Court concluded that the Trial Court did not err in rejecting the jury instruction.

Questions about this case can be directed to Nicolette DeFrank at (571) 470-0395 or ndefrank@tthlaw.com.