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S. Gary Werley v. Brandy Cannon and Matthew R. Cannon

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OPINION

Attorney S. Gary Werley appeals a judgment awarding Brandy and Matthew Cannon attorneys’ fees and costs as a sanction for violating a protective order. On appeal, Mr. Werley argues the trial court abused its discretion in entering the protective order and in sanctioning him. He also argues the court erred in entering the final judgment because it was based on the sanctions order. Finally, Mr. Werley contests the trial court’s award of appellate attorneys’ fees in the final judgment. We affirm. *fn1

The Cannons and Andrew Smith, a minor child, sued Dr. Scott Ashton, Ashton Podiatry Associates, and ISR Partners for medical malpractice. Their complaint alleged that Ms. Cannon underwent a bunionectomy, based on Dr. Ashton’s recommendations, to resection and reshape the head of the first metatarsal bone in her left foot to alleviate pain and restore normal walking. After Dr. Ashton performed this surgery and discharged Ms. Cannon, she experienced excruciating pain, so she returned to see him. From additional X-rays of her foot, Ms. Cannon noticed the bone in her great toe was about one-half inch shorter than it was before the surgery. Dr. Ashton told her that this and her sensations of pain were normal. At her next appointment, Dr. Ashton told Ms. Cannon that she had a bunion on her right foot and recommended that she have surgery for it before her health insurance incurred a new deductible. Ms. Cannon later underwent a similar surgical procedure on her right foot. When she returned to Dr. Ashton’s office to have her right foot X-rayed, she noticed the bone in her right foot was shortened and expressed concern. Dr. Ashton assured her once again that all was well. Over the next few months, Ms. Cannon continued to visit Dr. Ashton’s office, and Dr. Ashton continued to reassure her that “everything was going well,” and prescribed a tranquilizer for her. According to the complaint, Ms. Cannon has not been pain-free or able to walk normally since she had the first surgery.

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