On July 23, 2014, the South Carolina Supreme Court stayed consistent with its prior decisions in medical malpractice cases that permit medical malpractice cases to proceed on the merits rather than to affirm unwarranted dismissals based on technical noncompliance with the medical malpractice statutes.
The issue before the South Carolina Supreme Court (“Court”) was whether the medical malpractice plaintiff’s failure to file an expert witness affidavit with her Complaint warranted the dismissal of her civil action. The Court held that the expert affidavit filed with the Notice of Intent to File Suit filed by the plaintiff satisfied the statutory requirements of Section 15-36-100 and, thus, it was not necessary to file a second expert affidavit in the same civil action.
Section 15-79-125 requires that prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice in South Carolina, the plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness, which tolls the applicable statute of limitations. Nonetheless, Section 15-36-100(C)(1) states that the contemporaneous filing of an expert witness affidavit requirement does not apply where the statute of limitations will expire within ten days of filing and an expert witness affidavit could not be prepared due to time constraints, in which case the affidavit must be filed within 45 days of the filing of the complaint.
In the case it was deciding, the Court determined that the medical malpractice plaintiff filed her Notice of Intent to File Suit without an expert witness affidavit because the statute of limitations would expire shortly, that the plaintiff stated her intent to file the affidavit at a later date, and that in fact the plaintiff filed the affidavit within the required 45-day period. Therefore, the statute of limitations had been tolled; the Court further determined that the medical malpractice plaintiff complied with the pre-litigation requirements and timely initiated her civil action.
The Court next had to decide if the medical malpractice plaintiff’s Complaint was sufficient to comply with the requirements of Section 15-36-100, because the plaintiff never supplemented the Complaint with an expert affidavit. The Court noted that Section 15-36-100(B), which requires that the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each such claim based on the available evidence at the time of the filing of the affidavit, expressly begins with the words, “Except as provided in Section 15-79-125.”
Therefore, the Court held that the plain language of Section 15-36-100(B) expressly exempts a medical malpractice claimant from having to file a second expert affidavit as one has already been filed with the Notice of Intent to File Suit (“to require a second expert affidavit at the litigation stage in the proceeding leads to an absurd result as the plaintiff’s claim has not changed during the pre-litigation proceedings. This conclusion, however, does not obviate the need for a plaintiff to offer additional expert testimony as it may be necessary to withstand a defendant’s motion for summary judgment or to support the claim at trial”).
Source Vicki L. Wilkinson, Appellant, v. East Cooper Community Hospital, Inc., d/b/a East Cooper Regional Medical Center, Carolina Plastic Surgery Institute, P.A., and Thomas X. Hahm, M.D., Respondents. Appellate Case No. 2012-213464.
If you or a loved one were injured due to medical malpractice in South Carolina or in another U.S. state, you should promptly consult with a South Carolina medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice lawsuit, if appropriate.
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