July 18, 2020

The Supreme Court of Georgia held in its decision dated June 1, 2020 that “at least slight evidence was presented at trial” to warrant the trial court in instructing the jury on assumption of risk in a Georgia medical malpractice case.

The Underlying Facts

On October 2, 2009, Shane Berryhill (“Berryhill”) went to a local care clinic for chest pain and high blood pressure. The doctor at the clinic asked Berryhill to return the following day, at which point the doctor prescribed Vaseretic, a blood pressure medication, and referred Berryhill to Dr. Dale Daly (“Dr. Daly”).

On October 14, Dr. Daly performed a nuclear stress test that returned abnormal results and indicated that a large area of Berryhill’s heart was receiving low blood flow. Dr. Daly instructed Berryhill to continue using Vaseretic and prescribed Plavix to prevent blood clotting, Crestor to help with high cholesterol, and Bystolic, an additional blood pressure medication to protect against a heart attack. Dr. Daly did not warn Berryhill of the medications’ possible side effects of dizziness or losing consciousness. The following day, Dr. Daly performed a cardiac catheter procedure revealing a 99% blocked artery, and also performed a balloon angioplasty with a stent.

After the procedures, Dr. Daly gave post-surgical instructions to Berryhill’s wife, including that Berryhill was not to engage in any strenuous or risky activity or any lifting, bending, or stooping over for one week. The doctor also told Berryhill’s wife that he should be careful because he was on blood thinners. Dr. Daly later went over the restrictions with Berryhill, telling him he could return to work in a week, but not to engage in any strenuous activity or lift objects weighing more than ten pounds. Before discharge, a cardiac nurse discussed post-stent limitations, and Berryhill verbalized understanding and that he had the proper phone numbers to call with any questions.

It was undisputed that instructions of this general nature were given, but the plaintiffs also presented evidence that Berryhill was given conflicting information regarding the length of time he needed to refrain from activity, ranging from one day to one week. Berryhill was discharged from the hospital one day after the procedures.

Five days after the procedures, Berryhill went hunting. He walked 200 yards through rough terrain carrying his rifle (which weighed more than nine pounds), and climbed up an 18-foot deer stand. Upon reaching the top of the stand, Berryhill fainted and fell from the stand, fracturing several vertebrae.

Berryhill and his wife filed their Georgia medical malpractice lawsuit, alleging that Dr. Daly prescribed too much blood pressure medication, which caused Berryhill to faint. At the conclusion of the trial, the trial judge instructed the jury, over the plaintiffs’ objection, as follows:

“When a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such a risk in and of itself amounts to a failure to exercise ordinary care for his own safety, that person cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of the other person. To establish that Plaintiff Shane Berryhill assumed the risk of his injury the Defendants must demonstrate that Mr. Berryhill had a subjective knowledge of a specific particular risk of harm associated with the activity or condition that proximally caused the injury yet proceeded with the activity anyway.”

The Georgia medical malpractice jury returned a defense verdict, and the plaintiffs appealed. The Georgia Court of Appeals reversed, holding that the trial court erred in giving an instruction on assumption of the risk because the evidence did not justify the instruction. Specifically, the Georgia Court of Appeals held “climbing into a deer stand was not a risk associated with Dr. Daly’s duty to Berryhill . . . . Rather, the risk of fainting as a side effect of the medication was the particular risk in question.” The Georgia Court of Appeals explained that the suggestion in the record that Dr. Daly told Berryhill not to engage in strenuous activity did not establish that Berryhill knew that he risked losing consciousness if he chose to disregard the instructions, or that he knew dizziness or loss of consciousness were possible side effects of the blood pressure medication.

Georgia Supreme Court Opinion

The Georgia Supreme Court stated that there need be only slight evidence supporting the theory of the charge to authorize a requested jury instruction, and that the evidence supporting the charge does not have to be direct evidence – it is enough if there is something from which a jury could infer a conclusion regarding the subject.

The Georgia Supreme Court stated, “we need not decide as a matter of law whether Berryhill assumed a risk that led to his injury; we must decide only whether there was slight evidence to support the jury instruction regarding assumption of the risk. And if there was slight evidence supporting the instruction — and there was — it is irrelevant whether we find that slight evidence persuasive in the face of contrary evidence; that question was reserved exclusively for the jury.”

The Georgia Supreme Court held: “there was at least slight evidence that Berryhill was instructed not to engage in strenuous activity and not to lift more than ten pounds, bend, or stoop over for at least seven days after his procedure. Even though Dr. Daly did not explain all of the specific risks that could have resulted from disregarding those instructions, a competent adult like Berryhill cannot blind himself to the obvious risk of a dangerous cardiovascular event that could result in unconsciousness if he disregards explicit physician instructions prohibiting strenuous activity immediately after major heart surgery. There thus was at least slight evidence that Berryhill knew that going hunting and climbing a deer stand only five days after surgery posed a risk of serious physical injury, and that he voluntarily exposed himself to that risk. The trial court did not err in giving the requested jury instruction.”

Source Daly v. Berryhill, S19G0499.

If you or a loved one have suffered serious harm as a result of medical negligence in Georgia or in another U.S. state, you should promptly find a Georgia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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