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The Law of Medical Malpractice in South Carolina:

A Survey of Basic Considerations

Medical Malpractice Lawyer in South CarolinaSouth Carolina medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in South Carolina are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in South Carolina exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in South Carolina by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of South Carolina medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in South Carolina. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XIII examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in South Carolina.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in South Carolina?
-Required Elements of a Medical Malpractice Claim in South Carolina
-Introduction
-The Basic Elements
II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in South Carolina
-The Discovery Rule
-Introduction
-The Discovery Rule in South Carolina
-Special Provisions
-Minors
-Insanity
-Foreign Objects
-Final Thoughts
III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in South Carolina
IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in South Carolina
-Good Samaritan Law
-Introduction
-Good Samaritan Law in South Carolina
-Additional Immunities and Limitations on Liability
V. Presuit Requirement—Notice of Intent to File Suit
VI. Required Elements of a Medical Malpractice Complaint
-Basic Elements
-Notice Pleading
VII. Mandatory Mediation
VIII. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Introduction
-Admissibility of Expert Testimony in South Carolina
IX. Comparative Negligence
-Modified Comparative Negligence with 51% Bar Rule
-Apportionment of Fault with Multiple Defendants
X. Limitation on Noneconomic Damages
XI. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in South Carolina
XII. Apologies and Gestures of Sympathy
XIII. Patient Compensation Fund
XIV. Website Disclaimer

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in South Carolina?

Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

The South Carolina Supreme Court explained: “A physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances.” David v. McLeod Regional Medical Center, 367 S.C. 242, 247 (2006).

Required Elements of a Medical Malpractice Claim in South Carolina

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under South Carolina law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

South Carolina medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The South Carolina Supreme Court made this point clear, stating: “Negligence is not actionable unless it is a proximate cause of the injuries, and it may be deemed a proximate cause only when without such negligence the injury would not have occurred or could have been avoided.” Hughes v.The Children’s Clinic, P.A., 269 S.C. 389, 398 (1977).

The Basic Elements

To establish a cause of action for medical malpractice, the plaintiff must prove the following facts by a preponderance of the evidence:

  • The presence of a doctor-patient relationship between the parties;
  • Recognized and generally accepted standards, practices, and procedures which are exercised by competent physicians in the same branch of medicine under similar circumstances;
  • The medical or health professional’s negligence, deviating from generally accepted standards, practices, and procedures;
  • Such negligence being a proximate cause of the plaintiff’s injury; and
  • An injury to the plaintiff. Brouwer v. Sisters of Charity Providence Hospitals, 409 S.C. 514, 521 (2014).

The South Carolina Supreme Court explained that a plaintiff in a medical malpractice case must establish by expert testimony both the standard of care and the defendant’s failure to conform to the required standard, unless the subject matter is of common knowledge or experience so that no special learning is needed to evaluate the defendant’s conduct. David v. McLeod Regional Medical Center, 367 S.C. 242, 248 (2006).

Accordingly, the general rule holds that expert witness testimony is required to establish the basic elements of the applicable standard of care and the defendant’s breach thereof. However, in those cases where the alleged negligence and resultant injury is within the common knowledge and experience of laypeople, then expert medical testimony is not required to establish the applicable standard of care and breach thereof. Classic examples of situations that are considered within the common knowledge of lay jurors are when the wrong limb is amputated (left leg instead of right) and where a foreign object with no remaining therapeutic value is inadvertently left inside a patient following surgery. In these types of scenarios, laypeople can draw upon their own common knowledge and experience to conclude that the defendant was negligent without the need for an expert to tell them so.

According to the Court of Appeals, the “application of the common knowledge exception in proving negligence in a case involving medical malpractice depends on the particular facts of the case. When expert testimony is not required, the plaintiff must offer evidence that rises above mere speculation or conjecture.” Hickman v. Sexton Clinic, 295 S.C. 164, 168 (Ct. App. 1988).

The South Carolina Supreme Court described the applicable standard of care as follows: “the generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants’ field of medicine under the same or similar circumstances.” Pederson v. Gould, 288 S.C. 141, 143-144 (1986).

To establish a compensable medical malpractice claim, the plaintiff must show that the defendants’ departure from such generally recognized practices and procedures, i.e., breach, was the proximate cause of the plaintiff’s alleged injuries and damages. Green v. Lilliewood, 272 S.C. 186, 193 (1978).

The South Carolina Supreme Court instructed that “[p]roximate cause requires proof of (1) causation in fact and (2) legal cause.” Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 72 (1990). To establish causation in fact, the plaintiff must show that the injury would not have occurred “but for” the defendant’s negligence. Hanselmann v. McCardle, 275 S.C. 46, 48-49 (1980).

In order to establish legal cause, the plaintiff must prove foreseeability. Young v. Tide Craft, Inc., 270 S.C. 453, 462 (1978). According to the South Carolina Supreme Court, “the touchstone of proximate cause in South Carolina is foreseeability. Foreseeability of some injury from an act or omission is a prerequisite to its being a proximate cause of the injury for which recovery is sought.” Id. The Court added:

The standard by which foreseeability is determined is that of looking to the natural and probable consequences of the complained of act. While it is not necessary that the actor must have contemplated or could have anticipated the particular event which occurred, liability cannot rest on mere possibilities. The actor cannot be charged with that which is unpredictable or that which could not be expected to happen. In determining whether a consequence is one that is natural and probable, the actor’s conduct must be viewed in the light of the attendant circumstance. [internal citations and quotation marks omitted] Id.

Therefore, a plaintiff proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant’s negligence. Bramlett, 302 S.C. at 72. As is the case with the standard of care and breach, expert testimony is generally required to establish proximate cause in a medical malpractice case. Id. Similarly, “[e]xpert testimony is not required, however, to prove proximate cause if the common knowledge or experience of laypersons is extensive enough to determine the presence of the required causal link between the medical treatment and the patient’s injury.” Id. at 72-73.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in South Carolina

In general, medical malpractice claims in South Carolina are subject to a three-year statute of limitations. South Carolina Code of Laws(“SCCL”) § 15-3-545(A). Under the statute, an action “must be commenced within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered….” Id. Thus, under the standard rule, an action for medical malpractice must be commenced within three years from the date of the alleged negligence. The second part of the statute is discussed below in the Discovery Rule section.

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired. Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery. As such, it is critical to understand how time is computed under South Carolina law in calculating the exact date the applicable limitations period ends. Rule 6 of the South Carolina Rules of Civil Proceduresets forth how time is calculated. It instructs:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a State or Federal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor such holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in South Carolina

South Carolina recognizes the Discovery Rule for medical malpractice claims. In fact, it is integrated into the standard statute of limitations itself. SCCL § 15-3-545(A) states that medical malpractice claims must be brought within “three years from date of discovery [of the injury] or when it reasonably ought to have been discovered….” The principle embodied in the statute’s language is that of the Discovery Rule, i.e., knowledge of the injury as the triggering event for the starting of the limitations period.

The statute does not answer the question of what constitutes discovery of the injury for purposes of triggering the running of the three-year limitations period under the Discovery Rule. This is a critical question because the date the injury is deemed to have been discovered triggers the running of the three-year statute of limitations. There are two possibilities: (1) when the injury is discovered—injury only or (2) when the injury is discovered together with its cause—injury and medical cause, i.e., possible claim may exist. The South Carolina Supreme Court held in favor of the latter possibility as the triggering event for the running of the three-year Discovery Rule limitations period. Smith v. Smith, 291 S.C. 420, 426 (1987). The Court explained:

The exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of the injury would put a person of common knowledge on notice that some right of his has been invaded or that some claim against another party might exist. The statute of limitation begins to run from this point and not when advice of counsel is sought or a full blown theory of recovery developed. Id. (quoting Snell v. Columbia Gun Exchange, Inc., 278 S.E.2d 333, 334 (S.C. 1976)).

Special Provisions

Minors

Minors are subject to a different limitations period than the standard three-year period that normally applies to medical malpractice claims. In the event the injured party was a minor at the time of the alleged neglect act, the statute of limitations is tolled; however, the period in which to commence an action may not be extend beyond seven years from the date of the alleged negligence or more than one year after the injured party’s eighteenth birthday. SCCL § 15-3-545(D).

However, the statute of limitations is tolled indefinitely “for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor.” Id.

Insanity

Individuals who are deemed insane at the time of the alleged negligence are also subject to a different limitations period than the standard three-year period that normally applies to medical malpractice claims. UnderSCCL § 15-3-40, insanity tolls the statute of limitations; however, the period within which the action must be commenced cannot be extended (1) for more than five years nor (2) longer than one year after the disability ceases.

Foreign Objects

In a situation where the healthcare provider inadvertently leaves a foreign object inside the patient, he or she must commence an action “within two years from date of discovery or when it reasonably ought to have been discovered; provided, that, in no event shall there be a limitation on the commencement of the action less than three years after the placement or leaving of the appliance or apparatus.” SCCL § 15-3-545(B).

Final Thoughts

The application of South Carolina medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced South Carolina medical malpractice attorney. This is especially true when the statute of repose is also implicated (see next Section of this article). In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an South Carolina attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in South Carolina

South Carolina has a six-year statute of repose applicable to medical malpractice claims that is contained in the standard statute of limitations itself.SCCL § 15-3-545(A). It states the period in which a claimant may commence an action may not “exceed six years from date of occurrence….” Id.

The South Carolina Supreme Court explained:

The statute establishes a three-year limitations period running from the date the malpractice is discovered or reasonably ought to be discovered. This “discovery rule” is subject to a six-year period running from the date of occurrence. The six-year period, commonly referred to as a “statute of repose,” constitutes an outer limit beyond which a medical malpractice claim is barred, regardless of whether it has or should have been discovered. Hoffman v. Powell, 298 S.C. 338, 339-340 (1989).

Only those tolling provisions contained in SCCL § 15-3-545 may extend the limitations period beyond the six-year repose period. Langley v. Pierce, 438 S.E.2d 242, 243 (S.C. 1993). That is, tolling provisions contained in other sections of the SCCL do not toll the statute of repose. In Langley, the South Carolina Supreme Court rejected the argument that the six-year repose period was tolled bySCCL § 15-3-30, which tolls the applicable limitations period for the period of time the defendant is out of the state. Id.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in South Carolina

Sovereign immunity has been waived to the extent provided for in theSouth Carolina Tort Claims Act. SCCL § 15-78-40 states: “The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained herein.”

SCCL § 15-78-70(c) provides “when bringing an action against a governmental entity under the provisions of this chapter, shall name as a party defendant only the agency or political subdivision for which the employee was acting and is not required to name the employee individually, unless the agency or political subdivision for which the employee was acting cannot be determined at the time the action is instituted.”

A plaintiff may, but is not required to, file a verified claim within one year after the loss was or should have been discovered. SCCL § 15-78-80(d). The verified claim must set forth “the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, and the amount of the loss sustained….” SCCL § 15-78-80(a).

The filing of a claim with the relevant agency or political subdivision is not a mandatory prerequisite to commencing a legal action in court. SCCL § 15-78-90. However, if a claim is filed, the claimant “may not institute an action until after the occurrence of the earliest of one of the following three events: (1) the passage of one hundred eighty days from the filing of the claim with the governmental entity, (2) the governmental entity’s disallowance of the claim, or (3) the governmental entity’s rejection of a settlement offer.” Id.

The statute of limitations applicable to actions brought under the Tort Claims Act is contained in SCCL § 15-78-110. It states:

any action brought pursuant to this chapter is forever barred unless an action is commenced within two years after the date the loss was or should have been discovered; provided, that if the claimant first filed a claim pursuant to this chapter then the action for damages based upon the same occurrence is forever barred unless the action is commenced within three years of the date the loss was or should have been discovered.

SCCL § 15-78-120 sets forth limitations on damages that can be recovered under the Tort Claims Act. Under SCCL § 15-78-120(a)(3):

No person may recover in any action or claim brought hereunder against any governmental entity and caused by the tort of any licensed physician or dentist, employed by a governmental entity and acting within the scope of his profession, a sum exceeding one million two hundred thousand dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved.

And SCCL § 15-78-120(a)(4) provides:

The total sum recovered hereunder arising out of a single occurrence of liability of any governmental entity for any tort caused by any licensed physician or dentist, employed by a governmental entity and acting within the scope of his profession, may not exceed one million two hundred thousand dollars regardless of the number of agencies or political subdivisions or claims or actions involved.

Finally, punitive damages are not available for actions filed under the Tort Claims Act. SCCL § 15-78-120(b).

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in South Carolina

South Carolina has enacted a general Good Samaritan law that is codified in SCCL § 15-1-310. The statute provides immunity for individuals who, in good faith, render emergency care or assistance. The statute reads:

Any person, who in good faith gratuitously renders emergency care at the scene of an accident or emergency to the victim thereof, shall not be liable for any civil damages for any personal injury as a result of any act or omission by such person in rendering the emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person, except acts or omissions amounting to gross negligence or wilful or wanton misconduct.
The immunity granted by South Carolina’s Good Samaritan law does not apply if the damages caused by the Good Samaritan were the result of “gross negligence or by willful misconduct.” Id. Thus, Good Samaritans are shielded from civil liability for ordinary negligence, but not conduct that amounts to gross negligence or willful misconduct.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the South Carolina Code of Laws. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 15—Civil Remedies and Procedures.

V. Presuit Requirement—Notice of Intent to File Suit

South Carolina law requires the filing of a Notice of Intent to File Suit and an affidavit of an expert witness as a prerequisite to filing a medical malpractice lawsuit. SCCL § 15-79-125(A). It states:

Prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness, subject to the affidavit requirements established in Section 15-36-100, in a county in which venue would be proper for filing or initiating the civil action. The notice must name all adverse parties as defendants, must contain a short and plain statement of the facts showing that the party filing the notice is entitled to relief, must be signed by the plaintiff or by his attorney, and must include any standard interrogatories or similar disclosures required by the South Carolina Rules of Civil Procedure. Filing the Notice of Intent to File Suit tolls all applicable statutes of limitations. The Notice of Intent to File Suit must be served upon all named defendants in accordance with the service rules for a summons and complaint outlined in the South Carolina Rules of Civil Procedure.

The parties are required to participate in a mediation conference no later than 120 days from the service of the Notice of Intent to File Suit. SCCL § 15-79-125(C). If the claims cannot be resolved through mediation, the plaintiff may commence a civil action in court. SCCL § 15-79-125(E).

VI. Required Elements of a Medical Malpractice Complaint

Basic Elements

In South Carolina, there is only one recognized form of action, and it is known as a “civil action.” Rule 2 of the South Carolina Rules of Civil Procedure. A medical malpractice action is commenced when the summons and complaint are filed with the clerk of the court. Rule 3. Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief. A complaint is one of the authorized types of pleadings provided for in Rule 7(a).

Rule 8(a) requires that a complaint that states a claim for relief must contain: (1) a short and plain statement of the grounds including facts and statutes upon which the court’s jurisdiction depends, (2) a short and plain state of the facts showing that the plaintiff is entitled to relief, and (3) a prayer or demand for the judgment for the relief to which he or she deems himself or herself entitled. According to Rule 8(a), relief “in the alternative or of several different types may be demanded.” The Rule also provides the following:

Relief for a sum certain in money may be demanded for actual damages, but claims for punitive or exemplary damages shall be in general terms only and not for a stated sum, provided however, a party may plead that the total amount in controversy shall not exceed a stated sum which shall limit the claim for all purposes.

According to Rule 8(e)(1), each allegation “of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.” The complaint may “set forth two or more statements of a cause of action … alternatively or hypothetically, either in a single count … or in separate counts….” Rule 8(e)(2). In addition, the complaint may contain as many separate claims as the plaintiff has “regardless of consistency.” Rule 8(d)(3). All complaints “shall be so construed as to do substantial justice to all parties.” Rule 8(f).

The complaint must contain a caption “setting forth the name of the State and County, the name of the Court, the title of the action, the file number and designation” as a complaint.Rule 10(a). The complaint must contain the title of the action and names of all parties. Id. All allegations of the facts of a cause of action and demands for relief “shall be made in consecutive numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances….” Rule 10(b).

Finally, Rule 10(d) sets forth detailed instructions regarding the “manner of preparing papers” as follows:

With the exception of court-approved forms, pleadings and other papers shall be on eight and one-half by eleven inches in size paper. They shall be plainly written with adequate spacing between lines or typewritten with not less than one and one-half spacing between lines, except for indented quotations or footnotes. Papers must have a blank margin of a minimum of one inch on all sides. Type for captions, text, and footnotes shall be a minimum size of twelve-point type. Each page shall be numbered consecutively and pages shall be fastened at the top so as to read continuously. Page numbers and document identification footers may appear in margins and sized smaller than twelve-point type. Plats, photographs, diagrams, documents, and other paper exhibits or copies thereof may be submitted in their actual size; they should be reduced if practicable to eight and one-half by eleven inches if such reduction does not impair legibility and clarity.

If the complaint does not conform to the instructions set forth in Rule 10, the “clerk of the court shall not file” it. Rule 10(e).

The complaint “shall be signed in his individual name by at least one attorney of record who is admitted to practice law in South Carolina, and whose address and telephone number shall be stated. Rule 11(a). If the plaintiff is not represented by an attorney, then he or she must sign the complaint. Id.

Notice Pleading

South Carolina is a notice pleading state. Patton v. Miller,No. 27730 (S.C. July 26, 2017). In Patton, the South Carolina Supreme Court stated: “Today, however, we operate under the far more flexible notice pleading provisions of the Rules of Civil Procedure.” The Court quoted the U.S. Supreme Court decision in Conley v. Gibson, 355 U.S. 41, 48 (1957), in explaining the rationale for notice pleading.

It is too late in the day and entirely contrary to the spirit of the . . . Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. “The . . . Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”

Fact pleading is the other (less common) system of pleading. For example, Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VII. Mandatory Mediation

After a lawsuit is filed but before trial, “the parties shall participate in mediation….” SCCL § 15-79-120.

VIII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The requirements for whether a prospective expert witness is qualified to provide opinion testimony in a medical malpractice case are set forth inSCCL § 15-36-100. The statute provides that “expert witness” refers to an expert who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who:

(1) is licensed by an appropriate regulatory agency to practice his or her profession in the location in which the expert practices or teaches; and

(2)(a) is board certified by a national or international association or academy which administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or

(b) has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:

(i) the active practice of the area of specialty of his or her profession for at least three of the last five years immediately preceding the opinion;

(ii) the teaching of the area of practice or specialty of his or her profession for at least half of his or her professional time as an employed member of the faculty of an educational institution which is accredited in the teaching of his or her profession for at least three of the last five years immediately preceding the opinion; or

(iii) any combination of the active practice or the teaching of his or her profession in a manner which meets the requirements of subitems (i) and (ii) for at least three of the last five years immediately preceding the opinion;

(3) is an individual not covered by subsections (A)(1) or (2), that has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual’s study, experience, or both. However, an affidavit filed pursuant to subsection (B) by an expert qualified under this subsection must contain an explanation of the expert’s credentials and why the expert is qualified to conduct the review required by subsection (B).

According to the South Carolina Supreme Court, the “qualifications of an expert witness and the admissibility of the expert’s testimony are matters within the trial court’s discretion.” Gooding v. St. Francis Xavier Hospital, 326 S.C. 248, 252 (1997). The standard upon review of the trial court’s decision is abuse of discretion. Id. The Supreme Court instructed that an “abuse of discretion occurs when there is an error of law or a factual conclusion which is without evidentiary support.” Id.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in South Carolina

South Carolina is one of the few states that has not formally adopted either the Frye or Daubert standard. Instead, the South Carolina Supreme Court instructed trial courts within the state that admissibility determinations must be made in accordance with Rule 702 of the South Carolina Rules of Evidence and with reference to the factors set forth in State v. Jones, 273 S.C. 723 (1979). State v. Council, 335 S.C. 1, 19-21 (1999).

Rule 702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

The South Carolina Supreme Court summarized its Jones standard as follows:

In considering the admissibility of scientific evidence under the Jones standard, the Court looks at several factors, including: (1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures. Id. at 19.

The Supreme Court explained:

While this Court does not adopt Daubert, we find the proper analysis for determining admissibility of scientific evidence is now under the SCRE [South Carolina Rules of Evidence]. When admitting scientific evidence under Rule 702, SCRE, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable. The trial judge should apply the Jones factors to determine reliability. Further, if the evidence is admissible under Rule 702, SCRE, the trial judge should determine if its probative value is outweighed by its prejudicial effect. Rule 403, SCRE. Once the evidence is admitted under these standards, the jury may give it such weight as it deems appropriate. Id. at 20-21.

IX. Comparative Negligence

Modified Comparative Negligence with 51% Bar Rule

In 1991, the South Carolina Supreme Court adopted the doctrine of comparative negligence with with a 51% bar rule. Nelson v. Concrete Supply Company, 303 S.C. 243, 244-245 (1991). In a succinct and straightforward decision, the Supreme Court reversed the then-applicable doctrine of contributory negligence, adopted the doctrine of comparative negligence, and announced practical details regarding its application. Id. The Court stated:

Having determined comparative negligence is the more equitable doctrine, we now join the vast majority of our sister jurisdictions and adopt it as the law of South Carolina to the extent set forth below. For an exhaustive analytical discussion of the history and merits of comparative negligence, we refer the bench and bar to the opinion of Chief Judge Sanders in Langley v. Boyter, 284 S.C. 162, 325 S.E. (2d) 550 (Ct. App. 1984).

For all causes of action arising on or after July 1, 1991, a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant. The amount of the plaintiff’s recovery shall be reduced in proportion to the amount of his or her negligence. If there is more than one defendant, the plaintiff’s negligence shall be compared to the combined negligence of all defendants. See Elder v. Orluck, 511 Pa. 402, 515 A. (2d) 517 (1986). Id.

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence “is not greater” (i.e., may still recover even if plaintiff’s negligence is equal to defendant’s—50%) than the defendant or defendants being sued by the plaintiff—the 51% bar rule. If the plaintiff’s percentage share of determined fault is greater than the total of the defendant or defendants, then the plaintiff is not entitled to any recovery.

The Court of Appeals explained the rationale behind contributory and comparative negligence doctrines as follows:
Contributory negligence is a lack of ordinary care on the part of a person injured by the negligence of another which combines and concurs with that other’s negligence and contributes to the injury as a proximate cause without which the injury would not have occurred. The doctrine of contributory negligence embodies the principle that an injured person should not be permitted to ask from others greater care than he himself exercises for his own welfare. If in the exercise of ordinary care, the plaintiff might have avoided the consequences of the defendant’s negligence, he is the author of his own injury in the eyes of the law. Wallace v. Owens-Illinois, Inc., 300 S.C. 518, 522-523 (Ct. App. 1989).

Under contributory negligence (the doctrine that the South Carolina Supreme Court adopted in Freer v. Cameron, 37 S.C.L. (4 Rich.) 228 (1851), and followed prior to implementing the current doctrine of modified comparative negligence), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury. Contributory negligence is extremely unforgiven. If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages. It is for this reason that nearly every state has abandoned it. Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million. Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault). That is the result for under South Carolina’s current doctrine of modified comparative negligence. In contrast, under contributory negligence, the plaintiff recovers nothing. The plaintiff’s 10% allocation of fault serves as a complete bar to recovery. That is the stark difference between the two doctrines.

Comparative negligence is a fault and damages allocation system. Under South Carolina’s version, fault is determined and apportioned among the plaintiff and all defendants, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury. The Supreme Court announces this rule in Nelson with the following line: “The amount of the plaintiff’s recovery shall be reduced in proportion to the amount of his or her negligence.” Id.

For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award. If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because South Carolina imposes the 51% bar rule.

The issue of contributory negligence of the plaintiff is a question of fact to be determined by the trier of fact. Hawkins v. Pathology Associates, 330 S.C. 92, 105 (Ct. App. 1998). In Hawkins, the Court of Appeals explained:

The question of contributory negligence is ordinarily a question of fact for the jury. If the inferences to be drawn from the testimony are doubtful, the question as to whether the plaintiff is contributorily negligent is for the jury to determine. The question of contributory negligence becomes a question of law for the courts only when the evidence is susceptible to but one reasonable inference. In determining whether a plaintiff is contributorily negligent as a matter of law, the evidence of the whole case must be viewed in the light most favorable to the opposing party. Id.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied. Each approach can lead to vastly different results. The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s. For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery. Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought. In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants. Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

Fortunately for plaintiffs pursuing medical malpractice claims, the South Carolina Supreme Court announced in Nelson that the combined comparison approach is the law in South Carolina. The Court stated: “If there is more than one defendant, the plaintiff’s negligence shall be compared to the combined negligence of all defendants.” Nelson, 303 S.C. at 245.

Thus, under South Carolina law, the plaintiff in the foregoing example would be entitled to recover damages since the plaintiff’s share of negligence is less than the defendants’ aggregate share on a combined comparison basis (40% versus 60% for the defendants).

X. Limitation on Noneconomic Damages

The South Carolina Noneconomic Damage Award Act of 2005 imposes a limit on the amount of noneconomic damages that can be recovered in a medical malpractice action. The damage cap is set forth inSCCL § 15-32-220. It is extremely important to note that the damage cap amounts expressly set forth in the statute ($350,000 and $1,050,000—see below) are adjusted annually using the Consumer Price Index to the index as of December 31 of the previous year (see below). SCCL § 15-32-220(F). The adjusted damage cap amounts for 2017 are $440,040 against a single healthcare provider for each claimant and $1,332,125 for all healthcare providers for each claimant[1].

Under the statute, “[i]n an action on a medical malpractice claim when final judgment is rendered against a single health care provider, the limit of civil liability for noneconomic damages of the health care provider is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant, regardless of the number of separate causes of action on which the claim is based….” SCCL § 15-32-220(A).

Similarly, “[i]n an action on a medical malpractice claim when final judgment is rendered against a single health care institution, the limit of civil liability for noneconomic damages is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant, regardless of the number of separate causes of action on which the claim is based….” SCCL § 15-32-220(B).

The total amount that may be recovered in situations where more than one defendant is involved is also limited. SCCL § 15-32-220(C) provides:

In an action on a medical malpractice claim when final judgment is rendered against more than one health care institution, or more than one health care provider, or any combination thereof, the limit of civil liability for noneconomic damages for each health care institution and each health care provider is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant, and the limit of civil liability for noneconomic damages for all health care institutions and health care providers is limited to an amount not to exceed one million fifty thousand dollars for each claimant….

The limitations on noneconomic damages contained in the statute do not apply in cases involving grossly negligent, wilful, wanton, or reckless conduct or where the defendant engaged in fraud or misrepresentation related to the claim. SCCL § 15-32-220(E).

Economic damages and punitive damages are not subject to limits under the statute. SCCL § 15-32-220(D).

According to SCCL § 15-32-220(F), the actual damage limitation amounts must be calculated and adjusted annually as follows:

At the end of each calendar year, the Revenue and Fiscal Affairs Office, Board of Economic Advisors must determine the increase or decrease in the ratio of the Consumer Price Index to the index as of December 31 of the previous year, and the limitation on compensation for noneconomic damages pursuant to subsection (A), (B), or (C) must be increased or decreased accordingly. As soon as practicable after this adjustment is calculated, the Director of the Revenue and Fiscal Affairs Office shall submit the revised limitation on compensation to the State Register for publication pursuant to Section 1-23-40(2), and the revised limitation becomes effective upon publication in the State Register. For purposes of this subsection, “Consumer Price Index” means the Consumer Price Index for All Urban Consumers as published by the United States Department of Labor, Bureau of Labor Statistics.

XI. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in South Carolina

South Carolina law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases. However, there is an important limitation on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.

In general, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in South Carolina under Rule 1.5 of the South Carolina Rules of Professional Conduct. Rule 1.5(a) states:

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

  • the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  • the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
  • the fee customarily charged in the locality for similar legal services;
  • the amount involved and the results obtained;
  • the time limitations imposed by the client or by the circumstances;
  • the nature and length of the professional relationship with the client;
  • the experience, reputation, and ability of the lawyer or lawyers performing the services; and
  • whether the fee is fixed or contingent.

Comment 1 to Rule 1.5 states that the “factors specified in (1) through (8) are not exclusive. Nor will each factor be relevant in each instance.”

Contingent fee arrangements are expressly permitted by Rule 1.5(c), subject to the requirements described therein. A contingent fee arrangement must be in writing and signed by the client, and it must “state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal….” Id. It must also explain what “litigation and other expenses [are] to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.” Id. The agreement must “clearly notify the client of any expenses the client will be expected to pay.” Id. Finally, at the end of the case, “the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.” Id.

XII. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

South Carolina is among the states that have enacted an “I’m Sorry” law called the South Carolina Unanticipated Medical Outcome Reconciliation Act. It is contained in SCCL § 19-1-190 and is specific to healthcare providers. According toSCCL § 19-1-190(B), the purpose of the Act is:

The General Assembly finds that conduct, statements, or activity constituting voluntary offers of assistance or expressions of benevolence, regret, mistake, error, sympathy, or apology between or among parties or potential parties to a civil action should be encouraged and should not be considered an admission of liability. The General Assembly further finds that such conduct, statements, or activity should be particularly encouraged between health care providers, health care institutions, and patients experiencing an unanticipated outcome resulting from their medical care. Regulatory and accreditation agencies are in some instances requiring health care providers and health care institutions to discuss the outcomes of their medical care and treatment with their patients, including unanticipated outcomes, and studies have shown such discussions foster improved communications and respect between provider and patient, promote quicker recovery by the patient, and reduce the incidence of claims and lawsuits arising out of such unanticipated outcomes. The General Assembly, therefore, concludes certain steps should be taken to promote such conduct, statements, or activity by limiting their admissibility in civil actions.

The Act is specific to healthcare providers. It shields healthcare providers who communicate statements of benevolence, apology, or similar sentiment by making them inadmissible as evidence of liability in an action for medical malpractice. SCCL § 19-1-190(D). The statute reads as follows:

In any claim or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider, an employee or agent of a health care provider, or by a health care institution to the patient, a relative of the patient, or a representative of the patient and which are made during a designated meeting to discuss the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest.

For purposes of the statute, the terms used therein are defined in SCCL § 19-1-190(C) as follows.

“Designated meeting” means any meeting scheduled by the health care provider, representative or agent of a health care provider, or representative or agent of a health care institution:

  • to discuss the outcome including any unanticipated outcome of the provider or institution’s medical care and treatment with the patient, patient’s relative or representative; or
  • to offer an expression of benevolence, regret, mistake, error, sympathy, or apology between or among parties or potential parties to a civil action.

“Health care institution” means an ambulatory surgical facility, a hospital, an institutional general infirmary, a nursing home, or a renal dialysis facility.

“Health care provider” means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity

“Hospital” means a licensed facility with an organized medical staff to maintain and operate organized facilities and services to accommodate two or more nonrelated persons for the diagnosis, treatment, and care of such persons over a period exceeding twenty-four hours and provides medical and surgical care of acute illness, injury, or infirmity and may provide obstetrical care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina. This term includes a hospital that provides specialized service for one type of care, such as tuberculosis, maternity, or orthopedics.

“Institutional general infirmary” means a licensed facility which is established within the jurisdiction of a larger nonmedical institution and which maintains and operates organized facilities and services to accommodate two or more nonrelated students, residents, or inmates with illness, injury, or infirmity for a period exceeding twenty-four hours for the diagnosis, treatment, and care of such persons and which provides medical, surgical, and professional nursing care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina.

“Unanticipated outcome” means the outcome of a medical treatment or procedure, whether or not resulting from an intentional act, that differs from an expected or intended result of such medical treatment or procedure.

Note that South Carolina’s statute on the issue provides relatively robust protection for healthcare providers. In contrast to similar laws in most other states, South Carolina’s does not distinguish between statements of apology, benevolence, or similar sentiments and admissions of liability or guilt. Accordingly, under South Carolina law, statements made by healthcare providers that can be characterized as an admission of error or mistake still may not be used as evidence against them in a medical malpractice action.

Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in South Carolina understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

XIII. Patient Compensation Fund

Introduction

In general, a patient compensation fund is a state administered fund established and maintained for the purpose of compensating patients and/or their families for medical errors or omissions that occurred in the course of their treatment with a healthcare provider or entity that participates in the fund. A patient compensation fund functions largely like standard, commercial professional liability insurance in that the group of insureds all contribute a surcharge to the fund, which in turn makes payouts to patients with valid claims. The fund typically works in conjunction with healthcare providers’ primary professional liability insurance policy by operating as an excess professional liability insurance carrier, paying damage amounts in excess of the primary insurance policy limits.

South Carolina Patients’ Compensation Fund

South Carolina has enacted legislation creating a fund named the South Carolina Patients’ Compensation Fund. SCCL § 38-790420. The statute states:

There is created the South Carolina Patients’ Compensation Fund (fund) for the purpose of paying that portion of a medical malpractice or general liability claim, settlement, or judgment which is in excess of two hundred thousand dollars for each incident or in excess of six hundred thousand dollars in the aggregate for one year, up to the amounts specified by the board pursuant to Section 38-79-430. The fund is liable only for payment of claims against licensed health care providers (providers) in compliance with the provisions of this article and includes reasonable and necessary expenses incurred in payment of claims and the fund’s administrative expense.

Healthcare providers have the option of participating in the Fund, and if they choose to, they are required to pay the appropriate membership fees to the Board of Governors. SCCL § 38-79-440. The Board of Governors manages and operates the Fund. SCCL § 38-79-430. All participating healthcare providers “shall pay annual membership fees set by the board.” SCCL § 38-79-450.

A plaintiff who has a final judgment or settlement approved by the Board against a participating healthcare provider can file a claim with the Board to recover the portion of the judgment or settlement in excess of $200,000 for each incident or $600,000 in the aggregate for one year. SCCL § 38-79-480(3).

To learn more about the Fund, visit the official website:https://www.scpcf.com/default.asp.

XIV. Website Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free, written information about our qualifications and experience.

[1] 2017 adjustments calculated by the South Carolina Revenue and Fiscal Affairs Office published in a letter dated January 21, 2017.