South Carolina Supreme Court Holds Affidavit From Expert In Related Field Sufficient In Medical Malpractice Case

The South Carolina Supreme Court held in its decision issued on February 28, 2018 that the South Carolina medical malpractice plaintiff’s expert affidavit from a doctor who is not certified in or does not practice in the same area of medicine as the defendant doctor, but otherwise possesses specialized knowledge to assist the trier of fact, fulfills the requirement in section 15-79-125(A) that prior to initiating a medical malpractice action, a plaintiff must contemporaneously file a supporting affidavit from an expert witness in compliance with section 15-36-100.

Section 15-36-100(A)

Section 15-36-100(A) defines an expert witness as an individual 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). The defendant is entitled to challenge the sufficiency of the expert’s credentials pursuant to subsection (E).

In the case the South Carolina Supreme Court was deciding, the South Carolina medical malpractice defendants argued that the plaintiff’s expert affidavit was insufficient under section 15-36-100(A) because it did not demonstrate he had “actual professional knowledge and experience” in the same specific practice areas as the defendants (the defendants’ areas of practice are emergency medicine and primary care; the plaintiff’s expert’s area of practice is as a vascular and critical care surgeon). Thus, the crux of the defendants’ argument hinges on the interpretation of “area of practice or specialty” as contained in section 15-36-100(A)(2)(a) & (b).

The South Carolina Supreme Court stated that Subsection (A)(3) provides that an individual who is not otherwise qualified under subsections (A)(1) or (2) may still qualify as an expert if he 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.” S.C. Code § 15-36-100(A)(3). To qualify under this provision, an affidavit filed by a proposed expert must contain an explanation of the expert’s credentials and their relevance to the case. Thus, this subsection contemplates the production of an expert affidavit from a doctor who is not certified in or does not practice in the same area of medicine as the defendant doctor, but otherwise possesses specialized knowledge to assist the trier of fact.

The South Carolina Supreme Court held: “the information contained in Skudder’s [the plaintiff’s expert’s] affidavit [is] clearly sufficient to satisfy this provision. The affidavit lists Skudder’s specialized, technical knowledge regarding the issue of Mr. Eades’ [the plaintiff’s] treatment, explaining he is ‘aware of the degree of care and skill ordinarily exercised by members of the medical profession under the same or similar circumstances as it relates to the care and treatment of patients such as Johnny Eades. . . . This knowledge is based upon my education, training, and experience.’ Skudder further explained his active practice of medicine includes the evaluation and treatment of occluded arteries, aneurysms, and other issues similar to those for which Mr. Eades sought treatment. Thus, we find Skudder demonstrated he possesses the specialized knowledge and training that may assist the trier of fact in this case, and he explained why his credentials qualify him to identify a negligent act or omission committed by Petitioners. Accordingly, even if Skudder did not satisfy the requirements of subsection (A)(2) because he did not list the same practice areas as Campbell and Wallen [the defendants], his affidavit comports with the more general requirements of subsection (A)(3).”

Source Eades v. Palmetto Cardiovascular and Thoracic, PA, Opinion No. 27770.

If you may have been injured due to medical negligence in South Carolina or in another U.S. state, you should promptly seek the advice of a medical malpractice lawyer in South Carolina or in your U.S. state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Wednesday, March 14th, 2018 at 5:14 am. Both comments and pings are currently closed.

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