Plaintiffs bringing medical malpractice lawsuits in South Carolina got a little more time—and a lot more clarity about the state’s tort reform laws—after two recent decisions handed down by the state’s Supreme Court.
The court ruled that plaintiffs who file a notice of intent to sue for medical malpractice shortly before the state’s statute of limitations expires are entitled to a 45-day grace period in which to procure the required affidavit from an expert witness in support of their claim. In a separate, but closely related case, the court held that plaintiffs who file those affidavits within the grace period are not required to re-file the same affidavit when they submit their formal complaint.
Both rulings were 4-1 decisions handed on July 23. Attorneys for the plaintiffs praised the court for providing clarity about how different portions of the South Carolina Tort Reform Act of 2005 should be harmonized. The attorneys said that the rulings restore the understanding of the law that existed before a South Carolina Court of Appeals decision that the Supreme Court overturned in its rulings.
“When you look at the impact of these two cases, it really brings fairness to the procedure from the plaintiff’s perspective,” said John Nichols of Bluestein Nichols Thompson & Delgado in Columbia, who argued one of the cases. “Justice Beatty’s ruling brings some sanity to the process. It brings a sense of fairness and logic to this procedure the General Assembly put in place.”
The first case, Ranucci v. Crain, was brought by Shannon Ranucci, who suffered a collapsed lung after a breast biopsy in 2006. In 2009, just before the expiry of the statute of limitations, Ranucci filed a notice of intent (NOI) to sue Corey Crain, the doctor who performed the biopsy, as required by state law. In her NOI, Ranucci stated that time constraints prevented her from simultaneously filing an affidavit of a medical expert and that she would file such an affidavit within the next 45 days, which she did.
Crain moved to dismiss the suit, arguing that the affidavit needed to filed at the same time as the NOI and was filed after the statute of limitations had expired. A circuit court agreed, and in 2012, the state’s Court of Appeals affirmed the dismissal.
The Supreme Court reversed the dismissal, finding that when two parts of the state’s civil procedure laws were read together, they indicated a clear intent on the part of the state’s legislature to grant plaintiffs a 45-day grace period for obtaining an expert witness.
Connecting the dots
The NOI requirement is unique to medical malpractice suits. Under state law, a plaintiff must “contemporaneously file [an NOI] and an affidavit of an expert witness” prior to filing such a case. But the statute says the requirement is subject to requirements set out in the state’s Frivolous Civil Proceedings Sanctions Act, which obliges plaintiffs bringing any type of professional negligence action to file as part of their complaint an affidavit of an expert witness specifying at least one negligent act or omission.
The FCPSA makes an exception to the contemporaneous filing requirement, however, if the statute of limitations will expire within 10 days of the filing and the plaintiff alleges that because of time constraints an affidavit of an expert could not be prepared. In such cases, the law grants the plaintiff 45 days after the filing of the complaint to supplement the pleadings with the affidavit. Justice Donald Beatty, writing for the court’s majority, said the two statutes must be read in conjunction and that Ranucci’s claim should be allowed to proceed.
“Although [the sections] are distinct in their operational procedures, it is evident the General Assembly promulgated the statutes to work in concert for the common purpose of tort reform involving all professional negligence claims,” Beatty wrote, adding that “an absurd result is created if the statutes are read in isolation. Beatty said the finding was consistent with the court’s rulings in previous cases interpreting medical malpractice laws.
Justice Costa Pleicones dissented from the court’s ruling, arguing that the two statutes operated independently of each other because the FCPSA refers to a complaint and the contemporaneous filing requirement for a medical malpractice case refers to an NOI.
Columbia attorney Daryl Hawkins, who represented Ranucci, said that the Supreme Court’s ruling would end the controversy that has existed since the Court of Appeal’s decision in the case.
“Now that we all know that these savings provisions all apply to the medical malpractice notice of intent statute, it will clarify things for everybody, and just takes us back to what everyone had been believing [before the Court of Appeals' ruling],” Hawkins said. “We certainly have had a couple years of upheaval since Ranucci was decided [the first time] and people needing to go out find expert witness when they shouldn’t have had to.”
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The other case, Wilkinson v. East Cooper Community Hospital, Inc., was argued before the Supreme Court immediately after Ranucci. Like Ranucci, Vicki Wilkinson also filed her expert affidavit within 45 days of filing her NOI but after the statute of limitations would have expired. After her pre-suit mediation was unsuccessful, Wilkinson filed a complaint, but did not attach her expert witness affidavit with her complaint (which, as mentioned earlier, is required for other types of professional negligence claims). The circuit court granted the hospital’s motion to dismiss on the grounds that Wilkinson had not timely filed an affidavit with her complaint.
The Supreme Court, on the same 4-1 lines, rejected this argument as well and reversed the lower court’s dismissal of Wilkinson’s suit. Beatty, again writing for the majority, held that the contemporaneous filing requirement of FCPSA “expressly exempts a medical malpractice claimant from filing a second expert affidavit as one has already been filed with the NOI.”
The hospital had argued that because the clerk of court had assigned separate case numbers to the NOI and the complaint, Wilkinson’s medical malpractice case was two civil cases that required two expert affidavits. The Supreme Court said that the different case numbers were of no consequence and instructed clerks of court to be “mindful to assign and maintain a single case number for medical malpractice cases.”
Lawyers Weekly placed phone calls to three different law firms that represented the various defendants, seeking comment on the court’s decision. None of the law firms returned those phone calls.
The medical malpractice laws at issue in the case also require plaintiffs to engage in pre-suit mediation with the defendants before they can file a complaint. Nichols and Hawkins were both critical of that aspect of the law, saying that mediation was almost never productive and oftentimes merely perfunctory.
“The whole notion of NOI has been a failure. Very few cases have been settled under that. The mediation process is not successful, and the reason it’s not successful is that the defense does not know enough about a case to feel comfortable settling it,” Hawkins said. “Maybe it will improve with these decisions, because the Supreme Court has said they expect these mediations to really happen.”
The decisions are Ranucci v. Crain (Lawyers Weekly No. 010-081-14) and Wilkinson v. East Cooper Community Hospital, Inc. (Lawyers Weekly No. 010-082-14). The full text of the opinions is available online at sclawyersweekly.com.
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