The Georgia Court of Appeals Third Division (“Georgia Appellate Court”) on September 26, 2018 reversed a defense verdict in favor of a doctor who instructed his patient after surgery to not engage in any strenuous or risky activity, or any lifting, bending, or stooping over, but five days later, the man went hunting with a friend and climbed up into a deer stand. Upon reaching the top, which was approximately eighteen feet off the ground, he fainted and fell from the stand, suffering serious injury.
The man subsequently filed a Georgia medical malpractice lawsuit against his surgeon, arguing that the defendant prescribed too much blood pressure medication, which caused him to faint.
During trial, the court allowed the jury to view a fully assembled demonstrative deer stand set up outside on the courthouse grounds, to which the plaintiff objected due to its dissimilarities from the one he actually used. After the closing of evidence, the trial court instructed the jury on assumption of the risk and avoidance of the consequences. The jury found in favor of the defendant, and the plaintiff appealed.
Georgia Appellate Court Opinion
Assumption Of The Risk
The Georgia Appellate Court held that the evidence did not justify a jury instruction on assumption of the risk.
In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. The Georgia Appellate Court stated that a charge on assumption of the risk is appropriate where there is evidence that the plaintiff had subjective knowledge of the specific, particular risk of harm associated with the activity or condition that proximately causes injury, yet proceeded anyway.
The Georgia Appellate Court stated that a jury instruction on assumption of the risk is authorized only when the plaintiff assumes a known risk arising from a defendant’s conduct or failure to act. The evidence supporting an instruction on an assumption of the risk need only be “slight.”
In the case it was deciding, the Georgia Appellate Court stated that climbing into a deer stand was not a risk associated with the defendant’s duty to the plaintiff. Thus, it would be incorrect to identify this risk (and knowledge thereof) as the risk justifying the jury instruction. Rather, the risk of syncope as a side effect of the medication was the particular risk in question.
The Georgia Appellate Court stated that the record suggests that the defendant advised the plaintiff not to engage in any strenuous activity. However, this does not establish that the plaintiff knew he risked losing consciousness if he chose to disregard the defendant’s instructions. Nor is there any evidence in the record that the plaintiff knew that dizziness or loss of consciousness were possible side effects of his blood pressure medication. Thus, there is no evidence establishing the first element necessary for an instruction on assumption of the risk and, in short, the requested instruction should not have been given. Therefore, the Georgia Appellate Court held that the trial court’s instruction to the jury on assumption of the risk was improper. Further, the error was not harmless because it could have confused the jury into believing that any risk assumed by the plaintiff could have formed the basis for a finding of no liability. The Georgia Appellate Court therefore reversed the judgment for the defendant and ordered a new trial.
Avoidance Of Consequences
However, the Georgia Appellate Court further held that the trial court did not err in providing a jury instruction on avoidance of consequences, stating that there is evidence that the defendant advised the plaintiff not to engage in any strenuous activity for a week following his surgery. Assuming the defendant was negligent in not giving further detail in these discharge instructions as the plaintiff argued on appeal, the plaintiff ultimately decided not to seek further clarification or guidance on this limitation before climbing approximately eighteen feet up into a deer stand just a few days later. Thus, it was a question for the jury whether in exercising ordinary care for his own safety the plaintiff could have avoided the consequences of the defendant’s alleged negligence.
Source Berryhill v. Daly, A18A1089, A18A1362.
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