Rodrigue v. Butts-Franklin: $1.18 Million Malpractice Verdict Affirmed — Mitigation Is Not a Backdoor to Contributory Negligence
When an infection takes hold after surgery and nobody catches it, the patient pays the price in operations, hospital days, and permanent harm. Late last month, the Court of Appeals of Virginia affirmed a Norfolk jury's $1,183,000 verdict for exactly that kind of harm — and in doing so, drew a clean, quotable line between two defenses that insurance lawyers love to blur: contributory negligence and failure to mitigate damages.
The decision is Rodrigue v. Butts-Franklin, Record No. 1521-22-1 (Va. Ct. App. Jan. 30, 2024) (published opinion by Judge Raphael).
What happened
The plaintiff, Loretta Butts-Franklin, developed an infection after wrist surgery. The infection went undiagnosed, and by the time it was addressed she needed three more surgeries and spent eleven days in the hospital. A jury heard the evidence and awarded $1,183,000. The defense appealed.
The mitigation instruction the defense wanted — and didn't get
At trial, the defense pointed to evidence that the patient had soaked her hand, suggesting her own conduct contributed to the infection's course, and asked the court to instruct the jury on her supposed failure to mitigate her damages. The trial court refused, and the Court of Appeals affirmed.
The appellate court's reasoning matters for every injury case in the Commonwealth:
| Defense | What it addresses | When the conduct occurs | Effect if proven |
|---|---|---|---|
| Contributory negligence | The patient's role in causing the injury | Before or concurrent with the malpractice | Complete bar to recovery (must be pleaded and proved) |
| Failure to mitigate | The patient's failure to reasonably limit her losses | After the malpractice | Reduces damages only |
The defense had made a strategic choice not to plead contributory negligence — the all-or-nothing defense that requires proof and carries jury risk. But a mitigation instruction untethered from any evidence of when the hand-soaking occurred would have invited the jury to treat the patient's conduct as a causation defense anyway. The Court of Appeals refused to let the defense smuggle contributory negligence in "through the backdoor of a mitigation instruction." Mitigation, the court emphasized, concerns conduct after the wrong; without evidence fixing the timing, there was no foundation for the instruction.
Why this decision was possible at all
It is worth pausing on the court that issued it. Until January 1, 2022, Virginia was the only state in the country with no appeal of right in civil cases — a losing defendant (or plaintiff) could only petition the Supreme Court of Virginia and hope. The 2021 reform gave every civil litigant a guaranteed merits appeal to an expanded Court of Appeals of Virginia. Rodrigue is that new pipeline working as designed: a published, precedential civil decision that protects a jury verdict and clarifies the law for the next case.
What this means for injured people in Virginia
- Verdicts are sturdier than they used to be. A jury award now passes through an appellate court whose published decisions, like this one, are increasingly protective of the jury's role.
- The timing line has teeth. If an insurer or defense lawyer argues that something you did made your injury worse, the first question is when. Conduct before the negligence belongs to the strictly limited (and rarely provable) contributory negligence defense — which must actually be pleaded. Conduct after goes only to the amount of damages, and the defense bears the burden of proving it.
- Strategic pleading choices bind the defense. A defendant who declines to plead contributory negligence cannot resurrect it at the instruction conference dressed up as mitigation.
- Instructions are where verdicts are protected. Jury instructions sound technical, but they are often the whole ballgame: a single unsupported instruction invites a jury to discount a meritorious claim, and an erroneous one can force a retrial years later. Part of trying a case well is fighting the instruction conference as hard as the evidence.
- Post-injury care instructions matter. Follow your doctors' instructions and document your treatment. The best answer to a mitigation defense is a record showing you did what you reasonably could.
A word about the underlying medicine, because it recurs constantly in our practice: post-surgical infections are among the most preventable of serious medical harms — not because infection itself is always avoidable, but because an infection that is watched for gets caught early, and an infection that is caught early rarely needs three more operations. When a patient reports the classic signs and the response is reassurance instead of investigation, the days that follow are where the damage compounds. Cases like this one are, at bottom, about those lost days.
Failure-to-mitigate arguments show up in nearly every serious injury claim — the adjuster who says you waited too long to see a doctor, the defense expert who says you should have healed faster. Rodrigue arms Virginia patients with a published answer: mitigation is a damages question about the period after the wrong, with the burden on the defense, and it is not a second bite at blaming the patient for the injury itself.
If you or a loved one has been hurt, call Posey Lebowitz at (202) 524-0123 or send us a message for a free consultation.
Part of our DMV case law archive, compiled in 2026 to reflect the archive of some of the most important decisions in injury law.