Roger Jay PIATEK, M.D., and The Piatek Institute, Appellants-Defendants, v. Shairon BEALE, Appellee-Plaintiff.
No. 49A04-1209-CT-463
Court of Appeals of Indiana.
Aug. 15, 2013.
MAY, Judge.
OPINION ON REHEARING
Conclusion
Finding the definition of REUC in the Amended Contract to be compatible with the SNG Act, we dismiss that issue as moot and affirm the IURC‘s Order approving the Contract. As to all other claims, we summarily affirm the decision of the Court of Appeals.
RUCKER, DAVID, MASSA, RUSH, JJ., concur.
Edward L. Murphy, Jr., William A. Ramsey, Murphy Ice & Koeneman LLP, Fort Wayne, IN, Attorneys for Appellants.
Mary A. Findling, Findling Park & Associates, P.C., Michael J. Woody, Indianapolis, IN, Attorneys for Appellee.
OPINION ON REHEARING
MAY, Judge.
Roger Jay Piatek, M.D., and the Piatek Institute (collectively “Piatek“) petition for
In his apрeal of this medical malpractice verdict, Piatek argued, among other things, that the trial court should have instructed the jury on Beale‘s contributory negligence. We found no error, as there was no evidence of conduct on Beale‘s part that сontributed to the harm she suffered. Piatek v. Beale, 994 N.E.2d 1140, 1147-48 (Ind.Ct.App.2013).
On rehearing, Piatek argues the trial court should have given a contributory negligence instruction beсause Beale did not provide Piatek with an accurate medical history. Before we consider that argument, we must address Piatek‘s egregious mischaracterization of the record in the Petition for Rehearing.
Piatek says “Beale herself asserts that Dr. Piatek‘s lack of her accurate medical history was the proximate cause of her harm.” (Appellant‘s Petition for Rehеaring at 2.) Piatek directs us to three places in the trial transcript, none of which reflect Beale ever made any such assertion, or even suggest she might have. Not only is there no support at those places in the transcript for Piatek‘s statement, the pages to which Piatek directs us do not even include evidence. Rather, all are from opening or closing statements by counsel. It is axiomatic that the arguments of counsel are not evidence. See Young v. Butts, 685 N.E.2d 147, 150 (Ind. Ct.App.1997) (arguments of counsel constitute no evidence whatsoever).
In Young, Butts testified she was driving 60 miles per hour. On appеal, Young‘s counsel stated the speed limit was fifty-five and asserted Butts was therefore speeding. There was no evidence in the record to support that assertion; rather, the testimony in the record was that the speed limit was 65 miles per hour. Young‘s appellate counsel then stated Butts “admitted in her testimony that she had been traveling at a rate of speed in excess of the limit for that particular area.... This admission, made under oath, is evidence that Defendant-Appellee, Beth Butts, was speeding.” Id. The pаge of the record to which Young‘s counsel directed us contained no such admission nor was there any statement that could be interpreted as such an admission.
We found the misrepresentations by Young‘s counsel “particularly offensive,” id. at 151, because they would, if true, directly affect the propriety of the trial court‘s judgment. Because of the misstatements and various deficiencies in Young‘s brief, we found Young‘s appeal frivolous, without merit, and brought in bad faith, and we remanded for a determination of the approрriate amount of damages to be awarded Butts for the defense of the appeal. Id. at 151-52.
The misrepresentation by Piatek‘s сounsel is offensive for the same reason: had Beale “herself assert[ed] that Dr. Piatek‘s lack of her accurate medical history was the proximate cause of her harm,” (Appellant‘s Petition for Rehearing at 2), such a statement would have directly affected the propriety of the trial court‘s judgment.
We note this misrepresentation in Piatek‘s petition for rehearing cаme after we noted a number of deficiencies in the brief Piatek‘s counsel submitted on appeal. Those deficiencies included raising allegations not referred to in the Statement of the Issues as required by
As for Piatek‘s argument on rehearing that a contributory negligence instruction was required because Beale did not provide an accurate medical history, we reaffirm our decision. We acknowledge case law that indicates a patient may be contributorily negligent if shе gives her doctor false or incomplete information when she is capable of providing an accurate history. See, e.g., Fall v. White, 449 N.E.2d 628, 633 (Ind.Ct.App.1983). Dr. Piatek asked Beale if she had ever before taken Armour Thyroid. She said she had, sometime in the 1990s, and had no problems with it. That statement was incorrect. Beale had forgotten that, because of a prescribing error in the 1990s, she had at one point tаken four times the correct dosage1 and it made her dizzy.
That Beale did not remember the 1990s prescribing error did not require a contributory negligence instruction. Contributory negligence is conduct on the part of the plaintiff that contributes as a legal cause to the harm shе has suffered and that falls below the standard to which she is required to conform for her own protection. Id. at 634. There was no evidence Beale‘s non-disclosure that she had, years before, experienced dizziness when she took four times the proper amount of Armour Thyroid contributed as a legal cause to the harm she suffered. Specifically, there was no evidence Dr. Piatek would not have prescribed a normal dosage of Armour Thyroid if he had known Beale had an adverse reaction years before to a dosage that was four times the proper amount.
We grant Piatek‘s petition for rehearing2 and reaffirm our original decision in all respects.
BAKER, J., and MATHIAS, J., concur.
MAY
Judge