                                                                 Aug 15 2013, 5:38 am

FOR PUBLICATION



ATTORNEYS FOR APPELLANTS:                   ATTORNEYS FOR APPELLEE:

EDWARD L. MURPHY, JR.                       MARY A. FINDLING
WILLIAM A. RAMSEY                           Findling Park & Associates, P.C.
Murphy Ice & Koeneman LLP                   Indianapolis, Indiana
Fort Wayne, Indiana
                                            MICHAEL J. WOODY
                                            Indianapolis, Indiana




                        IN THE
           COURT OF APPEALS OF INDIANA
__________________________________________________
ROGER JAY PIATEK, M.D., and                 )
THE PIATEK INSTITUTE,                       )
                                            )
      Appellants-Defendants,                )
                                            )
             vs.                            )      No. 49A04-1209-CT-463
                                            )
SHAIRON BEALE,                              )
                                            )
      Appellee-Plaintiff.                   )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable David A. Shaheed, Judge
                          Cause No. 49D01-0711-CT-51055

                                 August 15, 2013

                   OPINION ON REHEARING - FOR PUBLICATION

MAY, Judge
       Roger Jay Piatek, M.D., and the Piatek Institute (collectively “Piatek”) petition for

rehearing of our decision dated May 20, 2013, affirming the jury verdict against Piatek

and in favor of Shairon Beale (“Beale”). We grant the petition for rehearing in order to

address an argument Piatek advanced on appeal and to note a mischaracterization of the

record by Piatek’s counsel in their rehearing petition. We reaffirm our original opinion.

       In his appeal 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

contributed to the harm she suffered. Piatek v. Beale, 2013 WL 2154773 at *5 (Ind. Ct.

App. 2013).

       On rehearing, Piatek argues the trial court should have given a contributory

negligence instruction because 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 Rehearing 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.

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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 appeal, 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 page 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 appropriate amount of damages to be awarded Butts

for the defense of the appeal. Id. at 151-52.

       The misrepresentation by Piatek’s counsel 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.

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       We note this misrepresentation in Piatek’s petition for rehearing came 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 Indiana Appellate Rule 46(A)(4), 2013 WL 2154773 at *1 n.1; a transcript

submitted with pages out of order, in violation of App. R. 28, id.; allegations of error

unsupported by explanation or citation to legal authority, id.; and mischaracterization of

certain testimony. Id. at *5 n.8.

       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 she 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 taken 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


1
    Piatek’s counsel does not, in his petition for rehearing, acknowledge Beale’s reaction to Armour
Thyroid came after she took four times the correct dosage. He says only “Beale herself now admits that
she had previously suffered a negative reaction to Armour Thyroid.” (Appellant’s Petition for Rehearing
at 2.)

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plaintiff that contributes as a legal cause to the harm she 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.




2
  Piatek submitted a Motion for Leave to Amend Appellant’s Petition for Rehearing to correct an
erroneous citation to the transcript. In light of our disposition of this rehearing request, we have by
separate Order denied the Motion as moot.
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