author: PER CURIAM. RUCKER, Justice,

text:
    In the Matter of Thomas M. DIXON, Respondent.
    No. 71S00-1004-DI-196.
    Supreme Court of Indiana.
    Oct. 8, 2013.

      Kevin P. McGoff, Patrick A. Ziepolt, Indianapolis, IN, Attorney for the Respondent.
    G. Michael Witte, Executive Secretary, Seth Pruden, Staff Attorney, Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.
   PER CURIAM.

The Indiana Supreme Court Disciplinary Commission filed a “Verified Complaint for Disciplinary Action,” against Respondent Thomas M. Dixon, charging him with attorney misconduct based on statements he made in support of a motion for a change of judge. Respondent’s 1995 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See Ind. Const, art. 7, § 4.

This matter is now before the Court on the report of the hearing officer appointed by this Court to hear evidence on the verified complaint and on the post-hearing briefing by the parties. We conclude that Respondent did not engage in attorney misconduct and therefore enter judgment in Respondent’s favor.

Background

A. Events Giving Rise to Misconduct Charges

Respondent, a graduate of University of Notre Dame (“Notre Dame”), has practiced law in the South Bend area since 1995. In May 2009, there were pro-life demonstrations in response to announcements that President Barack Obama would speak at Notre Dame and receive an honorary degree. More than 88 individuals were arrested by Notre Dame police and other local police, and were charged with trespass on Notre Dame grounds. Respondent represented 85 of those who were arrested. The 85 cases were consolidated into a single case, State of Indiana v. All Consolidated Cause Defendants, under Cause No. 71D01-0905-CM-03246. Respondent planned to present a novel defense for his clients — that they had a contractual right to pray on the Notre Dame campus originating in Catholic canon law.

The consolidated case was assigned to Judge Jenny Pitts Manier (“Judge Mani-er”) in St. Joseph Superior Court. Judge Manier is married to Professor Edward Manier, who was a tenured professor at Notre Dame and taught there for 48 years. Professor Manier retired in 2007. He continues to have teaching privileges at Notre Dame, although he does not teach, and he has a research grant.

Judge Manier had presided in an earlier case entitled Kendall v. City of South Bend, 71D07-0602-PL-52, a case in which Judge Manier ruled that Kendall, a pro-life supporter, was subject to an injunction regarding an abortion facility that was entered in a different case years earlier. Respondent represented Michael Marsh, who sought to intervene, asserting that he was similarly situated to Kendall and that his rights would be affected by the decision in that case. Judge Manier had denied intervention.

On August 28, 2009, Respondent filed an 11-page Motion for Change of Judge to have Judge Manier recuse herself from the consolidated case. The motion included a three-page affidavit from Respondent (“First Affidavit”) and supporting exhibits. After a hearing, Judge Manier denied the motion. On September 28, 2009, Respondent filed a 17-page motion to reconsider with supporting exhibits, including his nine-page supplemental affidavit (“Second Affidavit”). Judge Manier also denied the motion to reconsider.

Respondent sought Judge Manier’s re-cusal based on her husband’s alleged advocacy in favor of pro-choice causes and academic freedom for Notre Dame, along with Judge Manier’s failure to disclose this alleged advocacy. Respondent argued that his clients were arrested because they acted on beliefs about abortion and academic freedom for Notre Dame that were directly contrary to the beliefs allegedly advocated by Professor Manier during his career. Judge Manier also made statements that Respondent believed were inaccurate about her husband’s writings at the hearing on the Motion for Change of Judge. In addition, Respondent cited Judge Mani-er’s allegedly erroneous rulings in Kendall as a basis for recusal.

On October 8, 2009, Respondent filed a Motion for Certification of an Interlocutory Appeal requesting to appeal the recu-sal issue. Judge Manier certified the issue for appeal, but before the issue reached the Court of Appeals, Judge Manier filed a grievance against Respondent with the Commission and recused herself from the case.

Respondent filed timely notices of tort claim against Notre Dame related to potential civil suits by his clients against the University in order to preserve his clients’ rights in the event the University was found to be a government entity. Both the civil and criminal cases were resolved in 2011. Under the settlement, the clients agreed to release all claims against Notre Dame and the State dismissed all criminal charges against all of Respondent’s clients.

B. The Commission’s Charges of Misconduct

In its verified complaint, the Commission asserts that several statements Respondent made in the Motion for Change of Judge, Motion to Reconsider, First Affidavit, and Second Affidavit violated Indiana Professional Conduct Rule 8.2(a), which provides: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.... ”

Specifically, the Commission asserts that the following statements Respondent made in support of his Motion for Change of Judge violated Rule 8.2(a):

Statement A. “Such large scale litigation, and the results therefrom, could adversely impact Notre Dame’s bottom line, which in turn could have a negative impact on Notre Dame’s current and future employees. It is in Professor Manier’s interest to see that this does not occur. In short, Judge Manier and her husband are simply too intertwined with, and invested in, the University of Notre Dame and its mission to be allowed to preside over these cases.” Statement B. “Judge Manier’s inability to admit the intellectual and political (in the sense of policy setting) consanguinity between her husband’s career mission and Notre Dame’s current mission, calls into profound question her ability to navigate the waters of defendants’ legal defenses related to their contractual rights to be where they were when they were arrested.”
Statement C. “Judge Manier’s ruling applying the injunction to. Mrs. Kendall can be explained in only one of two ways: either Judge Manier did not understand the privity requirement of Trial Rule 65, or she did not feel duty bound to apply the rule because she was biased in favor of the abortuary.” Statement D. “Judge Manier’s refusal to allow Marsh into the case, when she knew Mrs. Kendall wanted out of the case, demonstrates to me that she was willing to ignore the applicable legal standards in order to move the case in a direction that negatively affected Marsh’s legal rights without giving him the ability, as required by Trial Rule 24, to have a voice in the process or defend the same.”

Verified Complaint at 2-4 (emphasis added to show the segments the hearing officer ultimately concluded to violate Rule 8.2(a).)

C. The Hearing Officer’s Conclusions

Statement A. The Commission alleged that Respondent’s statements that Judge Manier’s husband’s relationship with No-tre Dame prejudiced her ability to decide his clients’ case fairly was not based on the law and facts. The hearing officer concluded that Respondent did not state that Judge Manier’s connection to Notre Dame actually prejudiced her ability to preside over the Notre Dame trespass cases. Rather, he stated that Judge Manier and her husband are “simply too intertwined with, and invested in, the University of Notre Dame and its mission to be allowed to preside over these cases.” The hearing officer concluded that the Commission’s allegation that Statement A violated Rule 8.2(a) is not supported by the evidence. The Commission does not challenge this conclusion.

Statements B through D. The hearing officer began by observing that the Commission did not allege that Respondent’s statements about Professor Manier’s advocacy and Judge Manier’s alleged failure to disclose this advocacy were false or made with reckless disregard for the truth, and it presented no evidence that would support such a finding. The hearing officer concluded that “[m]ost, if not all, of Dixon’s specific factual allegations about Judge Manier’s connections to Notre Dame through her husband and her decision in Kendall were arguably correct or reasonably-supported by available information through the testimony of Judge Manier and other evidence submitted at the hearing.” Also, “Dixon’s ultimate statements on the issues of recusal were essentially legal in nature. Dixon articulated several facts and then asserted that these facts met the standard for recusal under Indiana legal precedent.” Nevertheless, the hearing officer concluded that the bolded parts of Statements B through D violated Rule 8.2(a):

Respondent was completely free to note the factual or legal errors that he believed Judge Manier to have made, however his comments go beyond the scope of argument. To argue that the Court has made an error is one thing, to argue that a Court has intentionally committed that error due to an improper motive is another. These comments went beyond legal argument, they became personal, and violate current professional standards.

(Emphasis added.) The Respondent filed a petition for review challenging this conclusion.

Discussion

A. Competing “Subjective” and “Objective” Tests for Truthfulness

The parties dispute the standard that should be used to determine whether an attorney’s statement about a judge violates Rule 8.2(a).

One possibility is the “subjective” standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). New York Times, a defamation case, held that First Amendment protections for speech and press prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “ ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” As the United States Supreme Court later explained in another defamation case, “actual malice” is a subjective standard and requires “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication” — that is, “that the defendant actually had a high degree of awareness of probable falsity.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (citations and internal quotations omitted; emphasis added). Although Respondent cites treatises favoring the “subjective” New York Times test, there appear to be few, if any, attorney discipline actions that apply the Harte-Hanks test (i.e., serious doubts about the truth of the statement; high degree of awareness of probable falsity).

Instead, attorney discipline cases generally apply a somewhat more stringent “objective” test for falsity, with the Ninth Circuit Court of Appeals typifying that approach. First, United States Dist. Ct. v. Sandlin, 12 F.3d 861 (9th Cir.1993) found that the purely subjective New York Times standard was unsuited to attorney disciplinary proceedings under the State of Washington’s analog of Rule 8.2(a), even though its language, like Indiana’s, closely tracked New York Times. Id. at 867. Instead, the court applied an objective standard, requiring the court to determine “what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances,” and focusing on whether the attorney had a reasonable factual basis for making the statements. Id. Two years later, Standing Comm. on Discipline of the United States Dist. Court v. Yagman, 55 F.3d 1430 (9th Cir.1995) held that a statement of opinion (in that case, a charge of anti-Semitism) based on fully disclosed facts can be punished as defamatory only if the stated facts themselves are false and demeaning. See id. at 1439. Yagman also noted that Sandlin’s objective test is consistent with the decisions of most state courts that have considered this issue, including the Indiana case of Matter of Terry, quoted above and discussed below. Yagman, 55 F.3d at 1437 n. 12.

B. Survey of Indiana Cases

This Court has never decided squarely whether a subjective or objective test applies to the truth or falsity of attorney statements about judges. Our prior cases, though, imply a rejection of the “subjective” standard applied in defamation cases, and have applied what is in practice an “objective” test.

In Matter of Terry, 271 Ind. 499, 394 N.E.2d 94 (1979), cert. denied, the respondent attorney had been suspended without pay as a judge by an opinion authored by Justice Donald H. Hunter. Thereafter, the attorney asserted in correspondence to public officials that Justice Hunter conspired with others to conceal alleged criminal activity of another person, and that this was the motivation for Justice Hunter in entering the order of suspension. There was no basis for these allegations. The attorney asserted that his statements were constitutionally protected. The Court rejected the attorney’s invocation of defamation cases in the context of attorney discipline:

The Respondent is charged with professional misconduct, not defamation. The societal interests protected by these two bodies of law are not identical. Defamation is a wrong directed against an individual and the remedy is a personal redress of this wrong. On the other hand, ... [professional misconduct ... is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fáir, impartial judicial system, and the system of justice as it has evolved for generations.

394 N.E.2d at 95-96 (emphasis added). The Court found that the attorney’s statements violated the Code of Professional Responsibility and his oath as an attorney. For this and other misconduct, the Court (without Justice Hunter’s participation) disbarred the attorney. Terry did not specify whether it was following a subjective or objective test, but it is consistent with Sandlin’s objective test. (Without a discussion of whether the attorney had any serious doubts about his allegations, though, it is it unclear whether the same result would have obtained under the New York Times subjective test.)

In Matter of Atanga, 636 N.E.2d 1253 (Ind.1994), this Court applied a test consistent with Sandlin’s objective test. There, a criminal defense attorney was charged with violating Rule 8.2(a) for his comments about a judge, made to a reporter and published by the paper: “I think he is ignorant, insecure, and a racist,” and accusing the judge of being motivated by political ambition, being part of the prosecution, and engaging in judicial tyranny.

Even though the majority first noted that the attorney did not raise a First Amendment constitutional challenge to the charge, it — like Sandlin and Yagman— inquired into the attorney’s factual basis for his comments:

As presented to this Court, the question is one of state of mind and conduct. What did Respondent know at the time he made the statements about the Tippecanoe Superior Court? Did he have a basis upon which to make statements concerning the Court? Were the statements reckless in light of his knowledge and experience?

Id. at 1257 (emphasis added). The majority found that the attorney indeed had reason to complain about the trial court’s administration of the case, “related to the events which had occurred in the case and matters specifically known to the Respondent,” so that if counsel “[h]ad ... confined his comments along these lines, there could be no finding of ‘reckless disregard.’ ” But the majority concluded that referring to the judge as “ignorant, insecure, and a racist” violated Rule 8.2(a) because “there [was] no basis upon which to conclude that [those] comments were anything else but reckless.” Id. at 1258 (emphasis added).

The absence of a factual basis for an attorney’s comments — the heart of an objective test — was again dispositive in Matter of Wilkins, 777 N.E.2d 714 (Ind.2002), on reh’g, 782 N.E.2d 985 (2003), cert. denied. There, the respondent filed a petition to transfer containing the following footnote:

Indeed, the [Court of Appeals] Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [the appellee], and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision).

777 N.E.2d at 715-16. This Court concluded that the respondent violated Prof. Cond. R. 8.2(a) by this statement, partly because “the respondent offered no evidence to support his contentions that, for example, the Court of Appeals was determined to find for appellee, no matter what.” Id. at 717 (emphasis added). By a vote of 3-2, the Court imposed a thirty-day suspension with automatic reinstatement.

On the respondent’s petition for rehearing, the Court stated: “Lawyers are completely free to criticize the decisions of judges. As licensed professionals, they are not free to make recklessly false claims about a judge’s integrity.” Matter of Wilkins, 782 N.E.2d 985, 986 (Ind.2003). We emphasized that the statement was sanctionable for “ascribing] bias and favoritism to the judges authoring and concurring in the majority opinion of the Court of Appeals” and “impl[ying] that these judges manufactured a false rationale in an attempt to justify their preconceived desired outcome.” Id. Nevertheless, the Court granted rehearing in part to impose a public reprimand rather than suspension.

C. Indiana’s Standard for Determining Rule 8.2(a) Violations

The prohibition against making a statement about a judge that the lawyer knows to be false is fairly straightforward, even though such actual knowledge might be difficult to prove in many cases. Not surprisingly, it is the prohibition against making a statement about a judge with reckless disregard as to its truth or falsity — as charged in this case — that is more often disputed. For such cases, we are now persuaded to join the majority view of other jurisdictions and expressly adopt an objective standard for determining when a statement made by an Indiana attorney about a judicial officer violates Rule 8.2(a). In formulating that standard, we are guided by the following considerations.

First, the limits on professional speech by attorneys are not coextensive with the limits of the First Amendment. This Court has distinguished between the societal interests protected by the First Amendment and by rules governing professional conduct. See Terry, 394 N.E.2d at 95-96. The First Amendment protects the societal interest of enabling robust public discourse on issues of public concern, and its protections are therefore necessarily very broad. However, this interest must be balanced against the societal interest in the public’s confidence in an impartial adjudicatory process, which unwarranted public accusations by an attorney against a judicial officer do nothing but weaken and erode. See Terry, 394 N.E.2d at 96. We conclude that the latter societal interest is not sufficiently protected by the New York Times subjective test, under which an attorney could be sanctioned only if he or she subjectively entertained serious doubts as to the truth of the statement at issue and actually had a high degree of awareness of its probable falsity.

Second, attorneys are expected to exercise reasonable objectivity in their statements about judicial officers. We expect those who have been granted the special privilege of admission to the bar to bring reasonable objectivity to their statements about judicial officers; to rise above the raw emotions and accusations that impede rather than enhance the judicial process. This, we note, also has the incidental benefit of fostering effective advocacy for their clients. An objective test is most consistent with that expectation, and with attorney discipline precedent in Indiana and other jurisdictions.

We therefore adopt an objective test for attorney statements under Rule 8.2(a): Did the attorney lack any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made? See Yagman, 55 F.3d at 1437; Sandlin, 12 F.3d at 867. The extent to which the attorney discloses accurate facts to support the statement is relevant to the determination of whether the attorney acted in reckless disregard as to its truth or falsity. See Yagman, 55 F.3d at 1439.

D. Analysis of the Charges against Respondent

Under those principles, Respondent did not violate Professional Conduct Rule 8.2(a) by making “a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.... ” Comment [1] to this rule states:

Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

(Emphasis added.)

Rule 8.2 violations often arise in the context of public comments by attorneys outside a legal proceeding. See, e.g., Matter of Reed, 716 N.E.2d 426 (Ind.1999) (prosecutor’s statements to press that newly appointed judge was ignorant, was being improperly influenced by politicians, had fabricated a report about liquor being present in court offices, and had no understanding of the cases); Matter of Atanga, (discussed above); Matter of Garringer, 626 N.E.2d 809 (Ind.1994) (lengthy “open statement” charging bankruptcy court officials with misconduct and criminal acts), cert, denied. However, Rule 8.2 violations have sometimes arisen from statements made within a legal proceeding. See, e.g., Matter of Wilkins, (discussed above); Matter of Becker, 620 N.E.2d 691 (Ind.1993) (statement in appellate brief falsely accusing trial court of causing recording of hearing to be turned off during important testimony). In either context, the objective standard we adopt today, standing alone, is sufficient to balance the public interest in candid discussions about judges’ qualifications against the competing interest in maintaining public confidence in the administration of justice. Prof. Cond. R. 8.2(a), Comment [1].

But in this case, Respondent’s statements were made not just within, but as material allegations of, a judicial proceeding seeking a change of judge on three grounds, each of which affirmatively requires alleging personal bias or prejudice on the part of the judge. Respondent principally relied on Criminal Procedure Rule 12(B), which provides:

In felony and misdemeanor cases, the state or defendant may request a change of judge for bias or prejudice. The party shall timely file an affidavit that the judge has a personal bias or prejudice against the state or defendant. The affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be áccompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. The request shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice.

(Emphasis added.) Second, he cited Indiana Code section 35-36-5-2, providing for a change of judge if the judge “is biased or prejudiced against the moving party and that the moving party cannot obtain a fair trial before the judge,” “is disqualified by reason of any conflict of interest,” or “should be disqualified for any other cause.” Finally, he also cited Rule 2.11(A) of the Indiana Code of Judicial Conduct, which states: “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” In seeking Judge Manier’s recusal, Respondent alleged both bias and the appearance of bias.

But even though Rule 8.2 holds attorneys to a higher disciplinary standard than New York Times does in defamation cases, we also recognize that attorneys need wide latitude in engaging robust and effective advocacy on behalf of their clients — particularly on issues, as here, that require criticism of a judge or a judge’s ruling. And as discussed above, in seeking a change of judge under Criminal Procedure Rule 12(B), a party must allege personal bias or prejudice on the part of the judge — and an attorney must therefore be allowed to assist the client in doing what the rule requires. A motion for a change of judge due to personal bias is inherently sensitive, but it implicates the client’s fundamental due process right to a neutral decision maker. Counsel’s advocacy on such matters must not be chilled by an overly restrictive interpretation of Rule 8.2(a).

We will therefore interpret Rule 8.2(a)’s limits to be the least restrictive when an attorney is engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge or a judge’s decision. In any other context, counsel’s advocacy would be limited only by Professional Conduct Rule 3.1, which requires only “a basis in law and fact ... that is not frivolous,” and Indiana Trial Rule 11(a), under which an attorney’s signature “constitutes a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief, there is good ground to support it; and that it is not interposed for delay.” And while criticism of a judge necessarily implicates Rule 8.2(a), even in genuine professional advocacy, any further restrictions of counsel’s advocacy on that sensitive subject should be as minimal as possible.

We first note what is not at issue. The Commission does not allege, nor is there any evidence, that Respondent acted in bad faith or that his Motion for Change of Judge was frivolous or unsupported by sufficient allegations of fact. The hearing officer did not find that Respondent made the statements at issue knowing them to be false. Thus, the only issue is whether Respondent made the four specific statements at issue with reckless disregard as to them truth or falsity in violation of Rule 8.2(a). Again, the test we apply is whether Respondent’s basis for making the statements at issue was objectively unreasonable considering their nature and context, including the extent to which Respondent supported the statements with accurate facts. And because Respondent was engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge, specifically, allegations of personal bias or prejudice required by Criminal Procedure Rule 12(B), we apply Rule 8.2’s limits in the least restrictive manner.

Under those principles, we readily conclude that the Respondent’s statements were not sanctionable:

Statement A. As noted above, the Commission does not challenge the hearing officer’s conclusion that Statement A does not violate Rule 8.2(a). We agree and find no violation regarding Statement A.

Statement B. The hearing officer concluded that the emphasized part of the following statement violated Rule 8.2(a):

“Judge Manier’s inability to admit the intellectual and political (in the sense of policy setting) consanguinity between her husband’s career mission and Notre Dame’s current mission, calls into profound question her ability to navigate the waters of defendants’ legal defenses related to their contractual rights to be where they were when they were arrested.”

Unlike the offending statement in Wilkins, this does not suggest improper motivation for the judge’s rulings. Rather, it relates to Respondent’s allegation of personal bias or prejudice required by Criminal Procedure Rule 12(B). We therefore conclude that Statement B does not violate Rule 8.2(a).

Statements C and D. The hearing officer concluded that the emphasized parts of the following statements violated Rule 8.2(a):

C. “Judge Manier’s ruling applying the injunction to Mrs. Kendall can be explained in only one of two ways: either Judge Manier did not understand the privity requirement of Trial Rule 65, or she did not feel duty bound to apply the rule because she was biased in favor of the abortuary.”
D. “Judge Manier’s refusal to allow Marsh into the case, when she knew Mrs. Kendall wanted out of the case, demonstrates to me that she was willing to ignore the applicable legal standards in order to move the case in a direction that negatively affected Marsh’s legal rights without giving him the ability, as required by Trial Rule 24, to have a voice in the process or defend the same.”

The bolded parts of these statements are somewhat similar in tone and quality to the statement in Wilkins that the plurality found violated Rule 8.2(a), ie., that the Court of Appeals was determined to find for the appellee “and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision).” 777 N.E.2d at 715-16.

However, in contrast to the attorney’s speculation in Wilkins, which was based only on the unfavorable decision itself, Respondent supported his charges against Judge Manier with a lengthy recitation of facts, in documents totaling 40 pages in length, in support of his argument that Judge Manier should recuse herself. Also, Respondent’s statements are relevant to, and indeed required for, the relief sought — Judge Manier’s recusal. In contrast, the objectionable statement in Wilkins seems to have been more of a random pot-shot than relevant argument. We therefore conclude, under the standard articulated above, that the two isolated statements shown above in bold do not violate Rule 8.2(a) considering the entire context in which they were made, including Respondent’s supporting facts.

Conclusion

The Court concludes that none of the statements at issue, which Respondent made in support of his Motion for Change of Judge, violated Indiana Professional Conduct Rule 8.2(a), considering the entire context in which the statements were made, including Respondent’s supporting facts. We therefore enter judgment in favor of Respondent.

The hearing officer appointed in this case is discharged.

The Clerk of this Court is directed to give notice of this opinion to the hearing officer and to the parties or their respective attorneys. The Clerk is further directed to post this opinion to the Court’s website, and Thomson Reuters is directed to publish a copy of this opinion in the bound volumes of this Court’s decisions.

All Justices concur., except Justice RUCKER, who concurs in part and dissents in part.

RUCKER, Justice,

concurring in part and dissenting in part.

I concur in that portion of the Court’s opinion adopting an objective standard for determining when a statement made by an Indiana attorney about a judicial officer violates Rule 8.2(a). However, I disagree with the Court’s conclusion that Respondent did not violate the Rule in this case. There is little to no daylight between the highlighted portions of Statements C and D and the statements a majority of this Court found sanctionable in Matter of Wilkins. I agree with the hearing officer that Respondent’s “comments went beyond legal argument, they became personal, and violate current professional standards”. In my view Respondent violated Rule 8.2(a) and should be sanctioned accordingly•

      . Yagman also held that statements of rhetorical hyperbole and statements that use language in a loose, figurative sense are not sanctionable. See id. at 1438.

      . Yagman cites only one case as adopting the New York Times subjective test: State Bar v. Semaan, 508 S.W.2d 429, 432-33 (Tex.Civ.App.1974).

      . The term "recusal” is often used interchangeably with the term "disqualification.” See Ind. Jud. Corid. R. 2.11, cmt. [1],

      . Respondent's Motion for Change of Judge was mooted when Judge Manier recused herself before the issue could be decided on appeal. We express no opinion on the merits of this motion.


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    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.
    May 20, 2013.

      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., Indianapolis, IN, Michael J. Woody, Indianapolis, IN, for Appellee.
   OPINION

MAY, Judge.

Roger Jay Piatek, M.D., and the Piatek Institute (collectively “Piatek”) appeal a jury verdict in favor of Shairon Beale (“Beale”). They raise three issues, which we consolidate and restate as:

1. Whether the trial court should have granted Piatek’s motion for a mistrial; and
2. Whether the trial court should have instructed the jury on contributory negligence and incurred risk.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 2003, Beale attended a seminar at the Piatek Institute. During that seminar, Dr. Piatek explained that sometimes diet and exercise are not sufficient to induce weight loss, and he therefore incorporates medication into the weight loss treatment he provides to clients. Beale wanted to lose ten pounds, so she went to Dr. Piatek’s office the following week. Dr. Piatek prescribed Adipex.

Beale returned to Dr. Piatek two weeks later and had lost 3.5 pounds. At that visit, Dr. Piatek prescribed Armour Thyroid, to be taken in conjunction with the Adipex. He told Beale the Armour Thyroid would burn an additional 100 calories a day.

She again saw Dr. Piatek two weeks later and had lost an additional 3.5 pounds. He instructed her to continue taking both medications. Five days later Beale broke out in a rash on her arm and chest. She went to an emergency room that day, and called Dr. Piatek’s office the next day. She was told to come see Dr. Piatek, but Beale instead went to her family doctor. She returned to the emergency room the next day and was referred to Dr. Mary Greist, a dermatologist. When she saw Dr. Greist her skin eruption covered approximately seventy to ninety percent of her body. Dr. Greist’s diagnosis was toxic epidermal necrolysis (“T.E.N.”), a severe allergic reaction manifested in the skin and the mucosal surfaces and usually caused by a drug. Dr. Greist prescribed medication to Beale, who treated her condition at home. Dr. Greist continued to treat Beale for about a month.

Beale filed a medical malpractice complaint against Piatek before the Indiana Department of Insurance. On October 15, 2007, the medical review panel issued a unanimous opinion that “the evidence supports the conclusion [Piatek] failed to comply with the appropriate standard of care.” (Trial Ex. 1.) A majority of the panel believed Piatek’s conduct “was a factor of [sic] the resultant damages,” id., but one member felt “it cannot be determined whether the defendants!’] conduct was a factor of [sic] the resultant damages.” Id.

On November 30, 2007, Beale filed her Complaint against Piatek in the Marion Superior Court. A jury returned a verdict for Beale. Piatek filed a Motion to Correct Error, which was denied, and this appeal ensued. Additional facts and procedural history will be discussed as they become relevant.

DISCUSSION AND DECISION

1. Piatek Motion for Mistrial

In a pre-trial Request for Admission, Beale asked Dr. Piatek:

Please admit that Dr. Piatek violated IC 35-48-3-11 when he prescribed Phen-termine to Shairon Beale for weight reduction on 4/16/03. ANSWER: Defendants object to this Request on 5th Amendment grounds. Without waiving the objection, Defendants maintain that Dr. Piatek did not violate IC 35-48-3-11 and denies this Request.

(App. at 193 (footnote added).)

At trial, Beale’s counsel asked Dr. Pia-tek a series of questions concerning Ind. Code Sec. 35-48-3-11. Piatek’s counsel objected to that line of questioning:

Your Honor he is not an attorney, she shouldn’t be asking him questions of law as to what the statute requires that would be totally improper. What she can ask him is how he interpreted the application of the statute to him, when he gives her that answer that’s the end of the inquiry otherwise she’s asking him to practice law and that’s not permissible.

(Tr. at 624.)

This exchange followed:

[Beale’s counsel]: Your Honor I’m not asking Doctor Piatek to practice law, he answered request for admissions and maybe we should do that, because remember when you plead [sic] the 5th and said you don’t remember pleading the 5th, and said you don’t remember pleading the 5th?
[Piatek’s counsel]: Objection permission to approach?
The Court: All right.
Beale’s counsel: In his request for admissions.
COUNSELS APPROACH THE BENCH
[Piatek’s counsel]: I want a mistrial; she’s not allowed to do that in a civil case bringing up that someone claimed [...]
The Court: Ladies and gentlemen I think we’re going to conclude for today.

(Id. at 625) (footnote added). At that point, the trial court dismissed the jury and heard further argument on Piatek’s Motion for Mistrial.

After hearing arguments of counsel, the trial court admonished the jury, over the objection of Piatek’s counsel, as follows, “I want to admonish at this time that Dr. Piatek has never pleaded the Fifth in this case, and is not pleading the Fifth in this case. So disregard the question and the inference that could be made from that question.” (Id. at 653.)

A mistrial is an “extreme remedy that is warranted only when less severe remedies will not satisfactorily correct the error.” Suding v. State, 945 N.E.2d 731, 737 (Ind.Ct.App.2011), trans. denied. We give great deference to a trial judge’s discretion in determining whether to grant a mistrial because the judge is in the best position to gauge the surrounding circumstances of an event and its impact on the jury. Id. When determining whether a mistrial is warranted, we consider whether the defendant was placed in a position of grave peril to which he should not have been subjected. Id. The gravity of the peril is determined by the probable persuasive effect on the jury’s decision. Id. A timely and accurate admonition is presumed to cure any. error in the admission of evidence, id., so reversible error will seldom be found if the trial court has admonished the jury to disregard a statement made during the proceedings. Id.

Piatek acknowledges the “only disputed issue is whether the Trial Court’s admonishment [sic] cured the prejudice.” (Piatek Br. at 10.) As Piatek has not demonstrated that presumption is overcome, we cannot hold denial of a mistrial was error.

In Suding, Suding sought a mistrial based on his wife’s testimony in violation of a motion in limine. Suding was charged with conspiracy to commit murder. The State asked his wife whether she could think of anything during the relevant time period “that scared you or bothered you enough to be here,” 945 N.E.2d at 738, and she said Suding became “more controlling and um, knocked me out one evening, out cold.” Id. Suding objected and the jury was dismissed. When it returned the court instructed it to disregard the statement. It reminded the jury Suding had not been charged with domestic violence, and no such incident was at issue in the trial. In light of that admonition and that the witness’s statement was brief, and relatively generic, as the witness did not go into detail regarding her accusations of domestic violence, we determined the trial court did not abuse its discretion in denying a mistrial. Id. The admonition “sufficiently cured the taint of the improper testimony.” Id.

In Owens v. State, 937 N.E.2d 880, 895 (Ind.Ct.App.2010), trans. denied, a child molestation victim was asked why she did not immediately report the molestation. She responded she was afraid to report because Owens “abused us.” Id. The trial court denied Owens’s motion for mistrial and instead admonished the jury’: “I’m going to admonish you at this point in time not to consider in any way the last statement from the witness. You shall disregard her last statement in regards to the reason why she did not tell anyone immediately after the incident.” Id. at 894-95.

In the case before us, we decline to hold a generic reference to “pleading the 5th,” (Tr. at 625), subjected Piatek to greater prejudice than did the references to domestic abuse in Suding or child abuse in Owens. The reference to “the 5th” was brief, and was “generic” as it does not appear the jury was told what “the 5th” referred to or what its specific implications might be to the case before it. Nor can we say the trial court’s admonition was inadequate to cure “the taint of the improper testimony.” Suding, 945 N.E.2d at 738.

We find little Indiana authority addressing in depth when that presumption is overcome, and Piatek directs us to none. But we do find guidance in decisions from other states. In Jones v. State, 100 S.W.3d 1, 4-5 (Tex.App.2002), pet. for discretionary review denied, the court held an instruction to disregard is presumed to cure error except in extreme circumstances where the evidence is “clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds.” Id. Jones did not overcome the presumption because he presented no cogent argument demonstrating evidence the State elicited regarding a defense witness’s prior criminal record “was of such a character that it was impossible for jurors to withdraw the impression created by the evidence from their minds.” Id. at 5. Nor has Piatek. And see Kinney v. Butcher, 131 S.W.3d 357, 360 (Ky.Ct.App.2004) (absent evidence to the contrary, we must assume the admonition achieved the desired effect).

The Wisconsin Supreme Court applied similar reasoning in Roehl v. State, 77 Wis.2d 398, 253 N.W.2d 210, 217 (1977): “We have frequently said that possible prejudice to a defendant is presumptively erased from the jury’s collective mind when admonitory instructions have been properly given by the court.” Piatek has not overcome this presumption as he has not demonstrated the jury would be unable to put the reference to “the 5th” out of its “collective mind.” The trial court did not abuse its discretion by denying Piatek’s motion for a mistrial.

Piatek directs us to Border Brook Terrace Condo. Ass’n v. Gladstone, 137 N.H. 11, 622 A.2d 1248, 1253 (1993), where the Court determined in an “extraordinary case” that an admonition did not cure prejudice from counsel’s numerous improper statements. The Border Brook Court noted decisions that upheld a trial judge’s choice of curative instructions over a declaration of mistrial where the offending remarks were ambiguous, where the complaining party appeared to have brought the problem on himself, and where the incremental prejudicial effect of the remarks seemed minimal. Id. at 1252. On the other hand, it noted decisions reversing the denial of a motion for mistrial where counsel offered his or her personal opinion on a material issue and where a witness alluded to criminal conduct of the defendant similar to the conduct charged. Id.

Border Brook is distinguishable. There, a closing statement “eombine[d] most of the elements found so abhorrent” in the decisions that found an admonition inadequate to cure prejudice. Id. Counsel asserted facts not in evidence by insinuating that Gladstone’s conduct was criminal and that profits were being “skimmed” from a different condominium project. Counsel offered his opinion on a material issue by stating, “I believe there was probably another association down in Florida that is having the profits from their project skimmed off.” Id. As the allegation of similar behavior at the Border Brook condominium project was one of the main components of the plaintiffs’ attempt to hold Gladstone personally liable, the assertion went directly to a material issue. Id. Finally, the remarks of plaintiffs’ counsel were likely interpreted by the jury as assertions of criminal conduct similar to the conduct alleged as grounds for piercing the corporate veil: “The phrase ‘having the profits from their project skimmed off has a decidedly criminal ring to it; combined with the attorney’s earlier allegation that ‘some of the evidence may suggest to you that his conduct was less than law abiding,’ the unfairly prejudicial effect is obvious.” Id. The Court stated it did not “mean to imply that the bell may never be ‘unrung.’ Instead, we merely hold that in the extraordinary case, such as this one, the bell is simply too loud to be successfully dampened.” Id. (citation omitted).

The statements in the case before us, unlike those in Border Brook, were not so egregious they could not be cured by the trial court’s admonition to disregard them. Unlike the remarks in Border Brook, Beale’s counsel’s question whether Dr. Pia-tek “remember[ed] pleading the 5th” did not assert facts not in evidence. In a pretrial Request for Admission, Beale asked Dr. Piatek to admit he violated Ind.Code § 35-48 — 3—11 when he prescribed Phen-termine to Beale. The Doctor responded “Defendants object to this Request on 5th Amendment grounds;” (App. at 193.) Nor did Beale’s counsel’s statement indicate the Doctor had engaged in criminal activity. We acknowledge a reference to “pleading the Fifth” suggests some underlying criminal activity and may be prejudicial. But “pleading the Fifth” is not itself a criminal act; it is an assertion of a constitutional protection. Nor did counsel offer her personal opinion on a material issue as did the counsel in Border Brook. The trial court’s admonition to Beale’s jury was adequate.

2. Contributory Negligence and Incurred Risk Instructicms

In reviewing a decision to give or to refuse tendered instructions, we consider: (1) whether the instruction correctly states the law; (2) whether there was evidence in the record to support the instruction; and (3) whether the substance of the instruction is covered by other instructions. Androusky v. Walter, 970 N.E.2d 687, 691 (Ind.Ct.App.2012). The trial court has discretion in instructing the jury and will be reversed on the last two above only when the instruction amounts to an abuse of discretion. Id. A party seeking a new trial on the basis of instructional error must show a reasonable probability his substantial rights have been adversely affected. Id.

a. Contributcrry Negligence

The trial court denied Piatek’s tendered instruction on Beale’s contributory negligence. The general rule on the issue of the plaintiffs contributory negligence is that the plaintiff must exercise that degree of care that an ordinary reasonable person would exercise in like or similar circumstances. Sawlani v. Mills, 830 N.E.2d 932, 941 (Ind.Ct.App.2005), trans. denied. Contributory negligence is conduct on the part of the plaintiff that contributes as a legal cause to the harm he has suffered and falls below the standard to which he is required to conform for his own protection. Id. A patient may be contributorily negligent by failing to follow a physician’s instructions. Id. at 941-42. But to be a bar to recovery, contributory negligence must be a proximate cause of the injury. Id. at 942. As there was no evidence of “conduct on the part of [Beale] that contributes as a legal cause to the harm [she] suffered,” id. at 941, the trial court was not obliged to instruct the jury on contributory negligence.

Piatek argued a contributory negligence instruction should be given because Beale did not return to his office for treatment after developing the skin eruption, and:

We know [Beale] had taken four times the medication she was suppose [sic] to at least one point prior. We know from the same medical record that she had unilaterally changed her own dosage on Armour Thyroid in 1995. Given that the testimony in this case, it that it would have to be a large — larger dose of these medications to cause T.E.N. There is enough evidence at least to get pass [sic] a motion for judgment on the evidence on the issue of “contributory negligence.”

(Tr. at 943^4.)

Dr. Piatek cites King v. Clark, 709 N.E.2d 1043, 1047-48 (Ind.Ct.App.1999), trans. denied, where King delayed obtaining diagnostic tests and immediately beginning chemotherapy so she could first consult with other physicians. That was sufficient evidence to support an instruction on contributory negligence based on King’s failure to follow instructions. Id. at 1048.

Beale did not return to Dr. Piatek’s office, but unlike King, she did not delay treatment; instead, she sought treatment from other physicians. There was no evidence the treatment she received from the other physicians was improper or inadequate, or that Dr. Piatek’s treatment would have been different. We decline to find evidence to require a contributory negligence instruction on that basis.

Dr. Piatek also argues the jury could have found Beale failed to follow Dr. Pia-tek’s instructions concerning the dosage of the prescription medications. There was evidence of one instance years earlier when Beale took a larger than prescribed dosage of a thyroid medication, and there was expert testimony that the two medications Dr. Piatek prescribed could have caused a toxic reaction if the prescribed amount was outside the normal thyroid range. The trial court did not abuse its discretion on refusing a contributory negligence instruction on this testimony.

b. Incurred Risk

Dr. Piatek also submitted an instruction on incurred risk. In Spar v. Cha, 907 N.E.2d 974, 981 (Ind.2009), our Indiana Supreme Court stated that:

[Assumption of the risk — whether in the express primary, or secondary sense — has little legitimate application in the medical malpractice context. As the District of Columbia Court of Appeals has explained, “the disparity in knowledge between professionals and their clientele generally precludes recipients of professional services from knowing whether a professional’s conduct is in fact negligent.” Morrison v. MacNamara, 407 A.2d 555, 567 (D.C.1979) (citations omitted), accord Smith v. Hull, 659 N.E.2d 185, 194 n. 6 (Ind.Ct.App.1995) (Sullivan, J. concurring). As a result, “there is virtually no scenario in which a patient can consent to allow a healthcare provider to exercise less than ‘ordinary care Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 884 (Del.Super.Ct.2005).

No such scenario is presented here. For incurred risk to be an issue there must be conscious, deliberate, and intentional action with knowledge of the circumstances. Power v. Brodie, 460 N.E.2d 1241, 1243 (Ind.Ct.App.1984). More than the general awareness of a potential for mishap is required; it contemplates acceptance of a specific risk about which plaintiff actually knows. Id. We have held in the medical malpractice context: “In determining whether a plaintiff incurred the risk of his or her injuries, a subjective analysis is required focusing on the plaintiffs actual knowledge and appreciation of the specific risk involved and the plaintiffs voluntary acceptance of that risk.” Faulk v. Nw. Radiologists, P.C., 751 N.E.2d 233, 243 (Ind.Ct.App.2001) (emphasis added), trans. denied.

Dr. Piatek argued there was evidence to support such an instruction because:

We know [Beale] had been on thyroid medication before, so she had had warnings about the risks of these medications. We know that she . signed an incurred risk form that the Jury has seen, in which she’s specifically signed, that .the risk of the medication has been explain [sic] to her, that Dr. Piatek has answered. all of her questions to her understanding, and satisfaction. We also know that she went through an orientation process. We know that she has described Dr. Piatek as being very knowledgeable, and Dr. Piatek has testified that he has — warned her of the known risk of the medication. If the Plaintiffs are willing to argue only deviations that actually could have led to T.E.N., then I think there’s probably no need for an incurred risk instruction. But to the extent they have deviations that could not have caused T.E.N. — For example the statute, whether or not that statute was complied with, has absolutely nothing to do with whether or not the medications caused T.E.N. The statute is only about the process of prescribing medications. And so by painting such a broad scope of alleged deviations, we are entitle [sic] to have an incurred risk instruction, to the extent the jury starts wondering about other potential harms that may have occurred ... at least to certain potential damages claimed.

(Tr. at 940-42.)

When Beale first visited Dr. Piatek, she signed a form that stated:

DR. PIATEK EXPLAINED TO ME THE RISKS OF TAKING MEDICATION. HE HAS ANSWERED ALL MY QUESTIONS TO MY UNDERSTANDING AND SATISFACTION. I UNDERSTAND I CAN ASK QUESTIONS THROUGHOUT MY ENTIRE TREATMENT. I ACCEPT THE RESPONSIBILITY AND RISK OF TAKING THE MEDICATION PRESCRIBED TO ME; THEREFORE ANY SIDE-EFFECTS OR OUTCOME THAT MAY BE PRODUCED I WILL NOT HOLD DR. PIATEK/PIATEK INSTITUTE LIABLE. I ALSO AGREE TO ONLY TAKE THE MEDICATIONS AS PRESCRIBED.

(Trial Ex. H).

The following exchange took place at trial:

[Beale’s counsel]: So what were the— What did you tend [sic] by the words, “any side effects or outcome’ ” what side effects were you talking about?
Dr. Piatek: I didn’t draft it.
⅜ ⅜ * ⅜ * *
[Beale’s counsel]: But what did you want your patients to understand by signing that?
Dr. Piatek: I’m not an attorney. I didn’t know. My attorney drafted it. [Beale’s counsel]: I understand you’re saying an attorney drafted this sir. But you’re having your patients sign a document that they’re giving up their liability to sue you for any side effects or outcome, so what did you intend for them to understand by any side effects or outcome.
Dr. Piatek: I don’t know Mary.
[Beale’s counsel]: So if you don’t know, then your patients couldn’t know either, would you agree with that?
Dr. Piatek: No I don’t.
[Beale’s counsel]: What outcomes were you talking about Sir?
Dr. Piatek: The side effects of the medications.
[Beale’s counsel]: And what were those?
Dr. Piatek: Well certainly, T.E.N, wasn’t one of them.

(Tr. at 662-63.)

We decline to attribute to Beale a better understanding of that document than Dr. Piatek had, and in light of Dr. Piatek’s testimony that T.E.N, was not a side effect he anticipated, we decline to find the document informed Beale of the specific risk Piatek alleges she incurred. There was evidence Dr. Piatek told his patients Adi-pex and Armour Thyroid had side effects, but there was no evidence Dr. Piatek warned Beale that these medications, taken together, presented a risk of T.E.N. Nor was there evidence Dr. Piatek warned Beale of the risks of taking Armour Thyroid and Adipex together. As she was not warned, she could not have known, appre-dated, or voluntarily accepted those specific risks.

Dr. Piatek also argues that Beale incurred the risk because she elected to avoid conventional treatment and instead requested Dr. Piatek’s “pioneer” treatment. (Piatek Br. at 40.) This argument was not made before the trial court, and cannot be brought up on appeal for the first time. See Aocker v. Buell, 147 Ind.App. 422, 428, 261 N.E.2d 894, 898 (1970) (we are a reviewing court and do not have jurisdiction to pass on a question raised for the first time in this court). The trial court was not obliged to instruct the jury on incurred risk.

CONCLUSION

The trial court’s admonition was sufficient to cure any prejudice from Beale’s reference to Dr. Piatek pleading the Fifth Amendment, and the trial court did not err in denying his Motion for Mistrial. The evidence presented at trial did not support instructions on Beale’s contributory negligence or incurred risk. We accordingly affirm.

Affirmed.

BAKER, J., and MATHIAS, J., concur.

      . Piatek complains of several violations of motions in limine, but we are unable to address those allegations of error. There is no reference to these alleged violations in Pia-tek’s Statement of Issues. We remind counsel that Appellate Rule 46(A)(4) requires a statement of the issues that "concisely and particularly describe[s] each issue presented for review.”
      Piatek first asserts Beale's counsel made certain improper statements and he directs us to page 23 of the transcript. We note initially that some of the pages of the transcript, including page 23, are out of sequential order. That is a violation of App. R. 28, which requires "[t]he pages of the Transcript shall be numbered consecutively.” We were able to find page 23, and while it reflected the allegedly improper statements were made in Beale’s opening argument, it also reflects Pia-tek’s counsel did not object to those statements. We decline to address them now. See Stamper v. Hyundai Motor Co., 699 N.E.2d 678, 682 (Ind.Ct.App.1998) (an objection to allegedly improper remark in opening statement is necessary to preserve the issue on appeal), trans. denied.

      Next, Piatek directs us to another statement during Beale's opening argument. He characterizes the statement as "clearly inappropriate,” (Appellants Roger Jay Piatek, M.D., and The Piatek Institute's Brief (hereinafter "Piatek Br.”) at 8), but offers no explanation or legal authority to indicate why the statement was reversible error. We therefore decline to address it. See, e.g., Haynes v. Haynes, 167 Ind.App. 55, 56, 337 N.E.2d 580, 581 (1975) (allegation of error waived when there "is no specific, cogent argument with citations of authority together with a showing of how the arguments and authorities are applicable to the facts of this case).”
      Piatek then asserts the trial court "agreed that Beale [by her statements in opening argument] had violated the order in limine, but refused to grant a mistrial.” (Piatek Br. at 8.) As Piatek offers no argument why the denial of that motion for mistrial on that basis was error, we may not address that allegation. See Young v. Butts, 685 N.E.2d 147, 151 (Ind.Ct.App.1997) (a court that must search the record and make up its own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator).
      Finally, Piatek asserts Beale’s counsel made certain inappropriate statements in closing argument. The transcript reflects Piatek objected to the statements and the objections were sustained. It therefore is not apparent what allegations of error are before us with regard to those statements.

      . Adipex is also known as Phentermine Hydrochloride, a sympathomimetic amine with pharmacologic activity similar to amphetamines. (Ex. 13.) Phentermine is a Schedule IV controlled substance. Ind.Code § 35-48-2-10(e).

      . In this exchange counsel were referring to the Fifth Amendment to the United States Constitution. The Fifth Amendment provides that no person shall be compelled to be a witness against himself. Clifft v. Indiana Dept. of State Revenue, 660 N.E.2d 310, 313-14 (Ind.1995). This privilege is afforded in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. Id.

      . The document in the Appendix is titled "ROGER PIATEK, M.D.’S SUPPLEMENTAL RESPONSE TO PLAINTIFF’S REQUEST FOR ADMISSIONS AND INTERROGATORIES." (App. at 191.) The record does not include the original Response to the Requests for Admissions.

      . That statute provides:
      (a) Only a physician licensed under IC 25-22.5 may treat a patient with a Schedule III or Schedule IV controlled substance for the purpose of weight reduction or to control obesity.
      (b) A physician licensed under IC 25-22.5 may not prescribe, dispense, administer, supply, sell, or give any amphetamine, sym-pathomimetic amine drug, or compound designated as a Schedule III or Schedule IV controlled substance under IC 35-48-2-8 and IC 35-48-2-10 for a patient for purposes of weight reduction or to control obesity, unless the physician does the following:
      (1)Determines:
      (A) through review of:
      (i) the physician’s records of prior treatment of the patient; or
      (ii) the records of prior treatment of the patient provided by a previous treating physician or weight loss program; that the physician's patient has made a reasonable effort to lose weight in a treatment program using a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification, and exercise without using controlled substances; and
      (B) that the treatment described in clause
      (A) has been ineffective for the physician's,patient.
      (2)Obtains a thorough history and performs a thorough physical examination of the physician’s patient before initiating a treatment plan using a Schedule III or Schedule IV controlled substance for purposes of weight reduction or to control obesity.
      (c)A physician licensed under IC 25-22.5 may not begin and shall discontinue using a Schedule III or Schedule IV controlled substance for purposes of weight reduction or to control obesity after the physician determines in the physician's professional judgment that:
      (1) the physician's patient has failed to lose weight using a treatment plan involving the controlled substance;
      (2) the controlled substance has provided a decreasing contribution toward further weight loss for the patient unless continuing to take the controlled substance is medically necessary or appropriate for maintenance therapy;
      (3) the physician’s patient:
      (A) has a history of; or
      (B) shows a propensity for; alcohol or drug abuse; or
      (4) the physician’s patient has consumed or disposed of a controlled substance in a manner that does not strictly comply with a treating physician's direction.
      Ind.Code § 35-48-3-11.

      . Counsel argued the admonition the trial court planned to give was not factually correct because it suggested Piatek had entered a plea of guilty. The court told counsel the admonition would not mention a guilty plea, and it did not.

      . Piatek asserts "[e]vidence also showed that Dr. Greist, from whom Beale ultimately sought treatment, provided inappropriate care for T.E.N.” (Piatek Br. at 26.) That is a mischaracterization of the testimony to which Piatek directs us. Piatek cites testimony spanning four pages of the record, almost all of which addressed whether a "normal” T.E.N, patient should be hospitalized and placed in a burn unit, and whether an ophthalmologist should be involved in treatment. (See Tr. at 526-28.) The witness noted Beale had not been hospitalized or treated by an ophthalmologist, but he did not testify Beale’s condition required hospitalization or ophthalmologic treatment. He further noted that in a certain category of case, treatment by an ophthalmologist is "not essential because the eye is not complicated [sic] in that setting.” (Tr. at 528.) He did not testify whether Beale was in that category.
      Dr. Greist did not hospitalize Beale for T.E.N. She testified she normally ordered patients with this condition to be hospitalized, but she allowed Beale to treat herself at home because she was bright, compliant, had someone to care for her, and the risk for infection would have been less at home than in a hospital. (Id. at 307-09.)

      . Piatek asserts there was evidence Beale voluntarily, incurred the risk because she testified she knew "[a]ny medicine could have a side effect.” (Piatek Br. at 35.) We decline Pia-tek’s invitation to hold such knowledge is evidence of incurred risk, as such a holding could preclude almost every medical malpractice action premised on any side effect of any medication used for treatment.

      . Piatek argues the doctrine of incurred risk does not require "Beale had precise knowledge of the specific side effect she would suffer,” i.e., T.E.N. (Piatek Br. at 37.) Piatek relies on decisions involving golfers struck by golf clubs and riders who fell off horses. In those cases, we held a plaintiff could incur risk without a showing that plaintiff "had prescience that the particular accident and injury which [sic] in fact occurred was going to occur." Forrest v. Gilley, 570 N.E.2d 934, 936 (Ind.Ct.App.1991), trans. denied. Forrest and similar decisions do not require an incurred risk instruction in the case before us. The Forrest court explicitly noted the requirement of "actual knowledge of the specific risk," id., and "the specific risk was that Gil-ley would fall off the horse and be injured.” Id. To hold in the case before us that Beale incurred risk, as Piatek argues, solely by taking medicine that might have any type of side effect, would be inconsistent with our language in Faulk and with the reasoning in Spar.