Atlanta—Georgia's Court of Appeals this week threw out a defense verdict in a 2015 medical malpractice trial against a doctor blamed for a hunter’s back-breaking fall from a deer stand. Berryhill v. Daly, STCV1102180.
In an opinion written by Judge Charlie Bethel, the appellate court concluded a Chatham County State Court judge erred when giving an assumption of risk instruction on the claim that Dr. Dale Daly improperly prescribed blood pressure medication to Shane Berryhill, causing him to faint and fall from a deer stand in 2009.
The nearly 20-foot fall fractured Berryhill’s back and paralyzed him from the chest down.
“[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,” Judge Bethel wrote. “[C]limbing into a deer stand was not a risk associated with Dr. Daly’s duty to Berryhill. Thus, it would be incorrect to identify this risk (and knowledge thereof) as the risk justifying the jury instruction.”
In a trial recorded and covered by CVN, jurors cleared Daly, who had prescribed blood pressure medication to Berryhill following a successful heart catheterization procedure. Berryhill, who had also been taking blood pressure medication prescribed before the catheterization, contended Daly’s prescription was excessive and Daly failed to properly warn him about the medication.
In the appellate opinion, joined by Presiding Judge John J. Ellington and Judge Elizabeth Gobeil, the court noted an assumption of risk instruction was appropriate only when the plaintiff had actual knowledge of the danger, among other required elements.
The court also noted evidence showed that Daly warned Berryhill not to engage in any strenuous activity. “However this does not establish that Berryhill knew he risked losing consciousness if he chose to disregard Daly’s instructions. Nor is there any evidence in the record that Berryhill knew that dizziness or loss of consciousness were possible side effects of his blood pressure medication,” Bethel wrote. “Thus, there is no evidence establishing the first element necessary for an instruction on the assumption of the risk, and, in short, the instruction should not have been given.”
The court concluded the error on assumption of risk, by itself, required retrial in the case. However, the court went on to reject Berryhill’s contention that the trial court also erred in giving an avoidance of the consequences instruction.
That instruction, the court reasoned, was appropriate in light of the contention that Berryhill didn’t ask for more detailed warnings from Daly before he climbed into a deer stand more than 15 feet off the ground.
The court reasoned that, since Berryhill argued Daly should have given him more detailed discharge instructions, “it was a question for the jury whether in exercising ordinary care for his own safety Berryhill could have avoided the consequences of Dr. Daly’s alleged negligence.”
The court also rejected cross-appeal contentions by Daly that the trial court erred in limiting testimony of a pharmacy expert and in excluding evidence of earlier claims Berryhill made against the deer stand manufacturer.
Email Arlin Crisco at email@example.com.
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