Jury instruction error on assumption of risk deemed harmless

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The South Carolina Court of Appeals held that although the trial court erred in instructing the jury on assumption of risk in a medical malpractice case, the error did not prejudice the plaintiff and did not affect the outcome of the trial.

The plaintiff alleged that the defendant physician used a contraindicated surgical technique during a breast reduction and implant removal, resulting in necrosis, infection, and eventual double mastectomy and reconstruction. The plaintiff contended the trial court erred by instructing the jury on assumption of risk, arguing that a patient cannot assume the risk of a physician’s deviation from the standard of care and that such a charge only applies where no duty exists as a matter of law.

The appellate court agreed that the assumption of risk instruction was inapplicable and risked confusing the jury. Nonetheless, it found the error harmless because it did not influence the verdict.

The plaintiff further argued that the trial court erred in denying her post-trial motion for a new trial or judgment notwithstanding the verdict, asserting that all experts agreed her injuries stemmed from a disruption of blood flow to the nipple-areolar complex and that the evidence supported only one inference—that the defendant’s use of an inferior pedicle technique caused the injury.

The court disagreed, finding the evidence was susceptible to more than one inference. While all experts agreed inadequate blood flow could cause fat necrosis, they also acknowledged such complications can occur even when a proper technique is used. Because the evidence on causation was conflicting, the trial court did not err in denying the plaintiff’s post-trial motion.

The 11-page opinion is Turisk v. Schimpf, Lawyers Weekly No. 012-068-25.