That Which is Not Preserved is Forfeited: Failure to Make Objection at Trial Waives Argument on Appeal

This convoluted medical malpractice case was brought by Shane Berryhill and his wife against his cardiologist, Dr. Daly.  Dr. Daly performed a cardiac procedure following which he instructed Mr. Berryhill not to engage in “any strenuous or risky activity, or any lifting, bending, or stooping over.” Five days later Mr. Berryhill went hunting. After climbing and reaching the top of a deer stand he fainted and fell approximately 18 feet to the ground.  

Plaintiffs sued Dr. Daly, and alleged that he prescribed too much blood pressure medication, which caused Mr. Berryhill to faint. The trial court instructed the jury on the assumption of the risk. After a defense verdict, Plaintiff’s moved for a new trial. Grouns included that it was error to charge the jury on assumption of the risk.  The court denied Plaintiffs’ motion and they appealed.

The Court of Appeals reversed the trial court’s judgment and held that the charge is authorized only when the plaintiff assumes a known risk from a defendant’s conduct or failure to act. The trial court reasoned that climbing a deer stand was not the type of risk associated with Dr. Daly’s duty to Mr. Berryhill, thus it cannot be the risk that justifies the jury instruction. The court went on to write that the particular risk in question was fainting, and the evidence did not establish that Mr. Berryhill understood that if he failed to comply with Dr. Daly’s instructions he risked fainting. Finding the error was not harmless, the Court of Appeals reversed.

The Supreme Court of Georgia granted cert. and reversed the Court of Appeals.  It affirmed the general rule that only slight evidence is necessary to authorize a jury instruction. It further held that Dr. Daly’s instructions not to engage in strenuous activity and not to lift more than 10 pounds, bend, or stoop over for at least seven days was sufficient evidence to support  a jury charge on assumption of the risk.  The Supreme Court went on to write that violating such medical instructions after major heart surgery “poses an obvious cardiovascular risk to which competent adults cannot blind themselves.”

Following the Supreme Court’s reversal, the Court of Appeals vacated its opinion and adopted that of the Supreme Court. Divisions 2 and 3 of the Court of Appeals original decision remained unchanged, and division 5 and 6 were moot.  Division 4, however, alleged that the defense made improper closing arguments relating to Dr. Daly’s reputation, the importance of his career and whether he would lie in front of his mother. In its original opinion, the Court of Appeals declined to address this argument finding that it was related to matters unlikely to recur on retrial.  On remand, the Court of Appeals wrote that at this stage it would normally address such a claim, but since Mr. Berryhill failed to make any objection whatsoever to Dr. Daly’s closing argument at trial the Court of Appeals held the argument was waived.

Take-home: That which is not preserved, is forfeited. At trial preserve every single possible error with a timely objection.


Berryhill v. Daly, ___S.E.2d. ___(2021); 2021 WL 221997.