Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Supreme Court has held there was enough evidence to support a charge of assumption of the risk in a medical malpractice case. Plaintiff claimed he fainted and fell out of a deer stand while hunting five days after heart surgery. Plaintiff and his wife sued his cardiologist, claiming he was given too much medication, which caused him to faint. A trial, the jury was charged on assumption of risk and the jury returned a defense verdict. The Court of Appeals reversed. The Supreme Court granted certiorari and held that there was enough evidence to charge the jury.

The evidence showed that Plaintiff knew he had surgery for cardiac issues and that he had been instructed not to engage in strenuous activity, including not lifting more than ten pounds, for at least seven days. Plaintiff disputed that he was told this and claimed he was not told about the specific risk of fainting. The Court of Appeals held that it was error to give the charge because “climbing into a deer stand was not a risk associated” with the physician’s duty, but fainting was a “side effect of the medication.” The Court of Appeals further wrote that the physician’s instructions not to engage in strenuous activity did not establish that Plaintiff knew he risked fainting if he did not follow them.

The Supreme Court affirmed the general rule that only slight evidence is necessary to justify a jury charge. And the Court held that it did not need to decide whether the evidence established assumption of the risk, only whether there was sufficient evidence to give the charge. Plaintiffs argued that because he did not know the specific risk of fainting, the charge should not have been given. The Court rejected this argument, reasoning that the Plaintiff does not need to know of the specific risk, only “a risk of physical injury” to get the charge of assumption of the risk because knowledge of any such risk amounts to a failure to exercise ordinary care and diligence for their own safety.

Take-Home: this was a battle over general v. specific risk. The Court’s ruling that a plaintiff need only be aware of a risk associated with their own conduct after medical treatment has wide-reaching implications for trial, especially in cases involving informed consent and discharge instructions.

Daly v. Berryhill, _ Ga. ___, 843, S.E.2d 870 (2020).

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