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 condition 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 mitigate 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 injury 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 swallowing 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 examined 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 recommended 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 regarding 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 (“I133”) 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 surgery 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 instruction 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 preponderance of the evidence that Dr. Moss had a duty to inform her of important facts concerning alternative treatments for her thyroid disease and of the risks of surgery;

that Dr. Moss breached that duty to her by not informing 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 contends 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 matters of substantive law when exercising diversity jurisdiction, 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 presumption is created under § 34-18-12-2, the party asserting 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 conduct. 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 subsequent 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 November 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 conclusion 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