Judge Charlie Bethel, Georgia Court of Appeals (Photo: John Disney/ ALM)

The Georgia Court of Appeals on Wednesday reversed a verdict in favor of the doctor in a medical malpractice case filed by a patient who was hurt when he fell out of a deer stand following a cardiac procedure.

Shane Berryhill was prescribed medication for high blood pressure at a clinic, then followed up with his cardiologist, Dr. Dale Daly. The cardiologist prescribed more blood pressure medicine and performed a surgical procedure to open a blocked artery. The doctor instructed Berryhill “not to engage in any strenuous or risky activity, or any lifting, bending, or stooping over,” according to the opinion written by Judge Charlie Bethel, who will be sworn in as the newest member of the Georgia Supreme Court Oct. 2. Bethel was joined in the opinion by Judges John Ellington and Elizabeth Gobeil.

“Nevertheless, five days later Berryhill went hunting with a friend and climbed up into a deer stand,” Bethel said. “Upon reaching the top, which was approximately eighteen feet off the ground, Berryhill fainted and fell from the stand, suffering serious injury.”

Berryhill sued Daly, claiming his cardiologist “prescribed too much blood pressure medication, which caused him to faint,” Bethel said.

The doctor denied the charge, and the jury agreed with the doctor. Chatham County State Court Judge Gregory Sapp denied Berryhill's motion for a new trial. Berryhill appealed.

The winning point for Berryhill was his complaint about the judge charging the jury on assumption of risk pertaining to climbing into a deer stand five days after cardiac surgery and while adjusting to new blood pressure medicine.

“Berryhill first argues that the trial court erred in charging the jury on assumption of the risk. More specifically, as he did at trial, Berryhill argues that the charge should not have been given at all but that, if given, it should have included the requirement that the plaintiff have a subjective understanding of the risk presented. We agree that the evidence did not justify a jury instruction on assumption of the risk,” Bethel said.

“The record suggests that Dr. Daly advised 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 Dr. 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. 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,” Bethel said. “Therefore, the trial court's instruction to the jury on assumption of the risk was improper.”

The doctor is being defended by Wiley Wasden III and Travis Windsor of Brennan Wasden & Painter in Savannah.

“We will be appealing this case further,” Wasden said Thursday by email. “We do not believe it is appropriate for any counsel to comment further as the case is still in the appeals process.”

Berryhill is represented by Brent Savage and Kathryn Hughes Pinckney of Savage Turner Durham Pinckney & Savage in Savannah.

“Our firm has poured its heart and soul into the representation of Mr. Berryhill, and we feel very fortunate to have obtained a reversal and new trial,” Savage said by email Thursday. “I am sure that the appellees will seek review on certiorari by the Georgia Supreme Court.  They have excellent counsel in Wiley Wasden and Travis Windsor. Obviously, we believe the Court of Appeals got it right.  Mr. Berryhill, who is in a wheelchair, never could have assumed the risk that lead to this tragedy.”

The case is Berryhill v. Daly, No. A18A1089.