Faile v. Bycura, 346 S.E.2d 528 (S.C. 1986). · Go Syfert
Faile v. Bycura, 346 S.E.2d 528 (S.C. 1986). Cases Citing This Book View Copy Cite
16 citation events (14 in the last 25 years) across 2 distinct courts.
Strongest positive: West/Hobby v. County of Newberry (scctapp, 2019-07-17)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) West/Hobby v. County of Newberry
S.C. Ct. App. · 2019 · confidence medium
Regime, 333 S.C. 71, 88 , 508 S.E.2d 565, 574 (1998))); id. at 404-05, 663 S.E.2d at 33 ("In order for the doctrine of assumption of the risk to apply in a particular case, the injured party must have freely and voluntarily exposed himself to a known danger which he understood and appreciated." (citing Faile v. Bycura, 289 S.C. 398, 399 , 346 S.E.2d 528, 529 (1986))); Singleton v. Sherer, 377 S.C. 185, 207 , 659 S.E.2d 196, 208 (Ct. App. 2008) ("The doctrine is predicated on the factual situation of a defendant's acts alone creating the danger and causing the accident, with the plaintiff's act…
discussed Cited as authority (rule) Cole v. Raut (2×)
S.C. · 2008 · confidence medium
In order for the doctrine of assumption of the risk to apply in a particular case, the injured party must have freely and voluntarily exposed himself *405 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).
discussed Cited as authority (rule) Cole Ex Rel. Estate of Cole v. Raut (2×)
S.C. Ct. App. · 2005 · confidence medium
"In order for the doctrine of assumption of the risk to apply, the injured 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).
examined Cited "see" Rebecca Turisk v. Dennis K. Schimpf (4×)
S.C. Ct. App. · 2025 · signal: see · confidence high
See Faile v. Bycura, 289 S.C. 398, 399 , 346 S.E.2d 528 , 529–30 (1986) ("When a patient seeks treatment by a particular type of practitioner, he may be held to have assumed the risk of the method of treatment of the particular school of thought chosen." (emphasis added)).
Retrieving the full opinion text from the archive…
Ethel Archie FAILE, Respondent
v.
Dr. Blair M. BYCURA, Appellant
22593.
Supreme Court of South Carolina.
Jul 21, 1986.
346 S.E.2d 528
1986 S.C. LEXIS 403
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.
Ness, Gregory, Harwell, Chandler, Finney.
Cited by 7 opinions  |  Published
3 passages pin-cited by 4 cases
Pinpoint authority: bottom 89%
Citer courts: Court of Appeals of South Caro… (2) · D. South Carolina (2)
Ness, Chief Justice:

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 Byeura, a podiatrist. Byeura diagnosed Faile’s condition as spurs of the heels in both feet. He performed a surgical procedure called a tenotomy on[*399] 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, Byeura 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 Byeura, 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, Byeura 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. Byeura 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 heel pain, but she was electing these treatments.

In order for the doctrine of assumption of the risk to apply, the injured party must have freely and voluntarily exposed himself to a known danger which he understood and appreciated. Easler v. Hejaz Temple, 285 S. C. 348, 329 S. E. (2d) 753 (1985). When a patient seeks treatment by a particular type of practitioner, he may be held to have assumed the risk of the method of treatment of the particular school of thought chosen. 61 Am. Jur. (2d), Physicians & Surgeons, Section 304.

In light of Faile’s testimony that the risks of the surgery were explained to her, we agree the issue of assumption of the risk should have been submitted to[*400] the jury. The judgment is reversed and the case is remanded for a new trial.

Reversed and remanded.

Gregory, Harwell, Chandler and Finney, JJ., concur.