The State of South Carolina Court of Appeals (“South Carolina Appellate Court”) overturned summary judgment that the trial court had entered in favor of the defendant physician and the defendant medical university in a case decided on February 7, 2018, finding that the circuit court erred in finding the plaintiff’s claims were time barred by the South Carolina statute of repose applicable to medical malpractice claims.
The Underlying Facts
The plaintiff was treated for her episodes of mania with electroconvulsive therapy (“ECT”) between December 10, 2003 and June 26, 2008, on eighty-six separate occasions. The plaintiff alleged that she sustained serious permanent cognitive damage as a result of the ECT.
On November 16, 2011, the plaintiff filed a complaint against the defendant physician and the Medical University of South Carolina (“MUSC”), asserting medical malpractice claims resulting from her ECT treatments. The plaintiff alleged that “[d]uring, after and a direct and proximate result of this extensive and involuntary ECT treatment, [she] lacked the mental capacity to understand and appreciate the detrimental effect the ECT had upon her until 2010 . . . .” The plaintiff also filed an expert affidavit corroborating her claims that she was incapacitated as a result of the ECT until 2010.
The defendants filed motions for summary judgment alleging that the plaintiff’s claims were barred by the statute of limitations and the statute of repose. The defendant physician argued that the first act of negligence would have occurred between 2002 and 2003, meaning the six-year statute of repose would bar any claims filed after 2009. MUSC argued that the plaintiff’s medical malpractice complaint against it having arisen out of ECT treatment initiated in 2003 was time barred. The circuit court granted the defendants’ motions for summary judgment, and the plaintiff appealed.
Statute Of Repose
South Carolina law requires claims for medical malpractice be filed 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 . . . .” S.C. Code Ann. § 15-3-545(A) (Supp. 2017). Section 15-3-545(A) creates a six-year statute of repose, beyond which a patient cannot sue their medical provider for malpractice. Accordingly, the statute of repose provision within section 15-35-545(A) applies as an absolute limit applicable in any medical malpractice action; a statute of repose creates a substantive right in those protected to be free from liability after a legislatively determined period of time.
South Carolina Appellate Court Opinion
The South Carolina Appellate Court stated that if a plaintiff alleges a misdiagnosis or failure to diagnose a condition within the six-year period–which an expert witness opines to be a breach of the physician’s duty of care–the statute of repose does not bar the cause of action merely because the physician previously misdiagnosed the condition outside the repose period.
The South Carolina Appellate Court stated that it was not suggesting that the statute of repose is tolled until the termination of the physician’s course of treatment but rather the statute begins to run at the time of a medical professional’s alleged negligent act or omission for which the plaintiff seeks to impose liability without regard to when the course of treatment ended. The South Carolina Appellate Court held that because the plaintiff asserts that she has been harmed as a result of treatment she received within the six-year statute of repose, and because there is evidence that her injury occurred as a result of treatment within the six years prior to her lawsuit, the circuit court erred in finding as a matter of law her claim is barred by the statute of repose.
Source Johnson v. Roberts, Opinion No. 5535.
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