Faile v. Bycura
| Decision Date | 20 May 1986 |
| Docket Number | No. 22593,22593 |
| Citation | 289 S.C. 398,346 S.E.2d 528 |
| Court | South Carolina Supreme Court |
| Parties | Ethel Archie FAILE, Respondent, v. Dr. Blair M. BYCURA, Appellant. . Heard |
John L. Choate and Charles R. Norris of Nelson, Mullins, Grier & Scarborough, Columbia, for appellant.
S. Jackson Kimball and John Martin Foster, Jr. of McDowell & Foster, Rock Hill, for respondent.
This is an appeal in a medical malpractice action in which the jury awarded respondent Faile $75,000 actual damages. We reverse.
In 1977, Faile sought treatment from Dr. Jackson, an orthopaedist, for pain in her right heel. She had previously been treated for pain in her left heel. Dr. Jackson treated Faile with cortisone injections in the heel until 1983, when he referred her to appellant Bycura, a podiatrist. Bycura diagnosed Faile's condition as spurs of the heels in both feet. He performed a surgical procedure called a tenotomy on both of Faile's feet. A tenotomy requires incisions on the top of the feet near the toes, and cutting the tendons in the toes to relieve pressure on the heel. A few weeks later, Bycura performed capsulotomies on both of Faile's feet. This procedure is similar to a tenotomy, but involves incisions on the bottom of the feet near the toes. After an uneventful recovery period, Faile was discharged.
Faile initiated this action against Bycura, alleging negligence in his choice of treatment. She alleged that tenotomies and capsulotomies were inappropriate procedures for relief of heel pain. She further alleged the surgeries had increased her heel pain and resulted in stiffness of the toes. There was no allegation the surgeries were performed in a negligent manner. In his answer, Bycura asserted the procedures were appropriate to relieve heel pain, and raised the defense of assumption of the risk.
At trial, upon motion by Faile, the trial judge struck assumption of the risk from the answer. Bycura asserts this was error. We agree.
Prior to both surgeries, Faile signed a consent form in which she acknowledged that the surgery would probably result in stiff toes. She further acknowledged that the surgery may not work and the heel spurs may have to be surgically removed at a later date. These consent forms were written out in Faile's own handwriting, and Faile testified one of Bycura's employees had discussed the risks with her. Faile also signed a form in which she acknowledged there were various methods for treating...
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Cole v. Raut
...party must have freely and voluntarily exposed himself to a known danger which he understood and appreciated." Faile v. Bycura, 289 S.C. 398, 399, 346 S.E.2d 528, 529 (1986) (citation omitted). The specific requirements of the defense of assumption of risk are: "(1) the plaintiff must have ......
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Cole v. Raut
...party must have freely and voluntarily exposed himself to a known danger which he understood and appreciated.2 Faile v. Bycura, 289 S.C. 398, 399, 346 S.E.2d 528, 529 (1986). In this case the assumption of the risk charge was improper because even if Cole assumed the risk with respect to th......
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Faile v. Bycura, 1247
...a jury award for Faile because the trial court did not submit the defense of assumption of the risk to the jury. Faile v. Bycura, 289 S.C. 398, 346 S.E.2d 528 (1986). The Court noted Faile had signed consent forms and testified one of Bycura's employees discussed the risks with her. Id. at ......
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