Sherer ex rel. Sherer v. James

On Rehearing

Goolsby, Judge:

The respondent Charles A. James, M.D., petitioned this court for a rehearing. A rehearing was conducted on the several grounds asserted in the petition that question our holding that the trial judge erred in not charging the jury instruction requested by the appellant Scott Middleton Sherer concerning increased risk of harm.

Sherer based his requested instruction on Section 323(a) of the Restatement (Second) of Torts (1965). This section reads as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person..., is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure, to exercise such care increases the risk of such harm....

James argues the South Carolina Supreme Court held in Hanselmann v. McCardle, 275 S. C. 46, 267 S. E. (2d) 531 (1980), that proof showing the defendant’s conduct increased the risk of harm or death by decreasing the chance of recovery or survival is insufficient to take the issue of proximate cause to the jury. He relies principally upon the reading given Hanselmann by the Supreme Court of Washington in Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash. (2d) 609, 614, 664 P. (2d) 474, 476 (1983).

The Washington Supreme Court, however, misinterpreted Hanselmann. In Hanselmann, our Supreme Court simply held that there was no evidence in the record from which a jury could infer a physician’s negligence was a proximate cause of the decedent’s death.

*311Here, however, and unlike Hanselmann, the record contains evidence from which a jury could reasonably infer the patient’s injury could have been avoided “but for” the physician’s failures to examine the patient, to provide a correct and timely diagnosis of the patient’s condition, and to render appropriate treatment therefor.

Hanselmann, moreover, pertains only to causation and does not prescribe, as does Section 323(a), a standard of conduct. In this respect, Hanselmann and Section 323(a) are not, as James would have us believe, in conflict. The jury must still find it is more probable than not that the defendant’s conduct caused the injury. Increased risk is simply a factor the jury may consider in reaching this determination.

Accordingly, we adhere to our earlier opinion. The stay of remittitur heretofore granted is revoked.

Bell and Cureton, JJ., concur.