                                                               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
