Tort/Negligence – Assumption of Risk – Causation

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The trial court erred in charging the jury on assumption of risk, but the error did not prejudice Appellant.

We affirmed the trial court’s denial of Appellant’s post-trial motion.

Appellant commenced the underlying medical malpractice action, alleging Respondent doctor selected a contraindicated surgical technique for her breast reduction and implant removal surgery, which resulted in necrosis, infection, and ultimately a double mastectomy and reconstructive surgeries. Specifically, Appellant alleged the technique Respondent used was contraindicated for her surgery because it failed to account for existing scar tissue below each nipple, which limited blood flow to the nipple-areolar complex (NAC).

Appellant argued the trial court erred in charging the jury on assumption of risk because a patient cannot assume the risk that a physician will deviate from the standard of care, and because assumption of risk goes to duty and there was no question a duty existed as a matter of law. Appellant further argued the charge was prejudicial because it confused the jury. We held the trial court erred in charging the jury as to assumption of risk because it was inapplicable to the facts of this case and risked confusing the jury. However, the erroneous instruction was not prejudicial because it did not affect the outcome of the trial.

Appellant also asserted the trial court erred in denying her post-trial motion for a new trial or JNOV because all experts agreed that but for a disruption of blood supply to the NAC, Appellant would not have suffered her injuries, and all experts agreed that necrosis and infection were the natural and probable consequences of a disruption of blood supply. Appellant contended the evidence was susceptible to only one inference—a disruption to the NAC’s blood supply resulted from the inferior pedicle technique that caused infection and necrosis. Appellant also argued the jury’s findings were inconsistent and demonstrated the jury was confused because (1) the verdict was wholly unsupported by the evidence and (2) the assumption of risk charge was improper. Appellant noted the trial court compounded the error by relying on the assumption of risk doctrine in its order. We disagreed. The court did not err in denying the post-trial motion because the evidence presented to the jury was susceptible to more than one inference. All experts agreed fat necrosis was caused by inadequate blood flow into the NAC, which can occur as a natural consequence of this surgery regardless of the technique used. But to satisfy the element of causation, Appellant was required to prove that Respondent’s breach caused the blood flow disruption that resulted in fat necrosis. Because the alleged breach was the selection of a contraindicated technique, Appellant had to prove that using an inferior pedicle elevated the risk of blood flow disruption so much that this outcome was foreseeable. The jury was presented with conflicting evidence as to causation. Therefore, the trial court did not err in denying Appellant’s post-trial motion because evidence supports the jury’s finding that the breach did not cause Appellant’s injuries.

Affirmed.

Turisk v. Schimpf (Lawyers’ Weekly No. 012-068-25, 11 pp.) (Per Curiam) Appealed from Charleston County Circuit Court (Maite Murphy, J.) Mark C. Tanenbaum and Whitney Allison Smith Rogers, both of Mark C. Tanenbaum, PA, of Mt. Pleasant; Elizabeth Middleton Burke, Misty Black O’Neal, and Theodore Augustus Constantine Hargrove, II, all of Rogers, Patrick, Westbrook & Brickman, LLC, of Mount Pleasant; Jesse Sanchez, of The Law Office of Jesse Sanchez, LLC, of Mount Pleasant; and William Tyler Robinson, of Ty Robinson Law Firm, LLC, of Charleston, all for Appellant. South Carolina Court of Appeals Unpublished