South Carolina Medical Malpractice Laws

If you are thinking of pursuing a claim of medical malpractice, it is likely that you have suffered a significant injury at the hands of your health care provider. This type of litigation can be incredibly nuanced, the complexities of which require skilled and experienced legal counsel. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering.

This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in South Carolina; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in South Carolina. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in South Carolina

In South Carolina, a medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in South Carolina places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in South Carolina allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. Like many states, South Carolina places a limit on the amount of non-economic damages that may be awarded to you if your medical malpractice claim is successful.

How long do I have to file a medical malpractice case in South Carolina?

The law in South Carolina mandates that an action for personal injury must be filed within three years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no other legal option to pursue justice. The reason behind placing a time limitation on when you may file a medical malpractice claim is based on the notion that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling, making your case all the more difficult to prove.

It is important to note that South Carolina law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Once you discover or should have discovered, your injury, the three-year window to file your lawsuit begins. However, you may not bring an action for medical malpractice more than six years from the time date that the alleged malpractice took place, regardless of when you actually discovered your injury.

In South Carolina Medical Malpractice Cases, who is Responsible?

In South Carolina, you may bring a medical malpractice lawsuit for an injury you suffered against a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or any similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity based upon alleged professional negligence or for rendering professional services without consent or for an act, error, or omission. [2]

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a health care provider is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

What if I am partially to blame? Can I Still Recover Money for SC Medical Malpractice?

South Carolina, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, South Carolina is one of 22 states (Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [3] In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why South Carolina decided to adopt a modified system.

Are there medical malpractice recovery caps in South Carolina?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two types of damage awards you may receive in South Carolina:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – economic damages and non-economic damages.

Economic damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than provide compensation to you. In South Carolina, you must meet the burden of persuasion before a court may consider a punitive damage award. The law in South Carolina requires that you prove by clear and convincing evidence that the named defendants’ actions were willful, wanton or reckless.

The law in South Carolina does not place a limit on the amount of economic damages that may be awarded in a medical malpractice action. However, the law does place a $350,000 limit on the amount of non-economic damages that you may receive. [4]

Expert witness reporting and testimony

The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered injuries that would not otherwise have been incurred.

Unlike some other states, the law in the state of South Carolina does not require you to file an affidavit or, certificate of merit, with the initial filing of your complaint for the purposes of verifying that a medical expert has reviewed your case and believes it holds merit. Instead, the testimony of a medical expert is reserved for a trial proceeding.

Are some parties immune from medical negligence cases?

Many states have implemented sovereign immunity whereby the State and its municipalities may not be held liable in a tort action. In South Carolina, the Torts Claims Act has partially waived this immunity. The State, an agency, a political subdivision, and a governmental entity are therefore 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. [5]

The partial immunity waiver is applicable to claims relating to acts of state health care providers, more specifically, physicians and dentists who receive their salary directly from a governmental entity. Liability is limited to $250,000 per claim. [6]

Settling medical malpractice cases in South Carolina

Many medical malpractice cases settle out of court. For this reason, many states have enacted laws that require some type of alternative dispute resolution attempt prior to the case progressing to the trial stage of litigation.

At any time before a medical malpractice action is brought to trial, the parties are required to participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules in effect at the time for the State or any portion of the State. The involved parties may also agree to participate in binding arbitration, nonbinding arbitration, early neutral evaluation, or other forms of alternative dispute resolution. [7]

Litigating medical negligence cases in South Carolina

A claim for medical malpractice in South Carolina is initiated by preparing a Complaint that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In South Carolina, a civil action begins by filing a Complaint with the clerk of the court. A Complaint should include:

• The proper name of every plaintiff and of every defendant.
• A statement of facts constituting the cause of action.
• A demand for relief.

A civil Summons is also required and notifies the court and the defendant that you are filing a lawsuit. The Summons must be signed by the clerk of the court and must then, along with the Complaint, be delivered to all named defendants in the lawsuit. All named defendants are then required to provide a response to the complaint in the form of an Answer within 30 days of being served with the Complaint and Summons. [8]

Preparing for Litigation

After the Complaint, Summons and Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition via oral examination or written questions;
• written interrogatories;
• requests for admission;
• request for production of documents or other information;
• physical and mental examinations.

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist. You must comply with any request unless you file a written objection stating the reason or reasons for your objection.

Pretrial Litigation

The law in South Carolina requires that claims of medical malpractice first be heard by a mediator or other form of alternative dispute resolution prior to the case reaching trial. The goal behind the requirement is to create an environment that is conducive to finding an amenable settlement.

Trial

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of South Carolina: a judge or a jury. In South Carolina, a civil trial will usually include 12 jurors but that number can be as low as six.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. The law in South Carolina allows each side to have six peremptory challenge where jurors may be eliminated from consideration. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In South Carolina, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of South Carolina
• at least 18 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. Most appeals taking place in South Carolina must be filed within 30 days from notice of the judgment or decision. [9]

How to find the best SC Medical Malpractice Lawyer

Achieving the best possible outcome in your medical malpractice case is often contingent upon securing the best possible counsel to represent you in your action. Finding skilled legal representation can take your mind off of the legalese involved in a lawsuit so that you can focus on healing your injury.

One of the main motivating factors in bringing a medical malpractice lawsuit against a health care provider that caused your injury is to receive proper compensation for the pain, suffering, and losses you have likely endured. Without a damage award, it is likely that you would be forced to go out-of-pocket in order to help heal your injury. Therefore, it is easy to see why hiring proper legal counsel is of the utmost importance.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your timetable, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit. Once you have several candidates lined up, weigh the pros and cons of each and decide which you feel most comfortable with.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. Do not be afraid to ask about their fee structure and if they prefer to litigate on an hourly or contingency rate.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs. If the attorney or law firm is unwilling to communicate with you the way you prefer, move on and find representation that will.

Notable medical malpractice law decisions from South Carolina

These cases represent awards to plaintiffs in medical malpractice cases in South Carolina. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Leanna Loud and William Loud v. Jeffrey Short, MD, individually, and Charleston Radiologists

The plaintiff, Leanna Loud, underwent a bilateral screening mammogram performed by radiologist Jeffrey Short of Charleston Radiologists at East Cooper Regional Medical Center. Dr. Short interpreted the results of the mammogram and discovered dystrophic type nodular calcifications in the upper aspect of the right breast. Dr. Short concluded that these calcifications were benign.

The plaintiff was later diagnosed with advanced breast cancer. A lawsuit was filed against Dr. Short and Charleston Radiologists for medical malpractice based upon claims that Dr. Short’s failure to properly diagnose her developing breast cancer in 2008 allowed it to evolve into metastatic disease.

At the trial, a medical expert testified that he believed the plaintiff had early Stage 1 cancer at the time of the mammogram performed by Dr. Short. The expert went on to state that the plaintiff had an 80 to 100 percent chance of survival if she had been given appropriate treatment at that time.

Dr. Short denied his liability and argued that the calcification findings were few in number and appeared benign. He also argued that the nature of the plaintiff’s carcinoma was so aggressive that any treatment would be unlikely to prevent her death.

The jury found in favor of the plaintiff and awarded $4,800,000 in economic damages and $1,400,000 in non-economic damages.

McColl v. Lang

Christopher Douton returned to his office from working in the field when he noticed that his left leg had gone numb.

Douton was taken by EMS to the Conway Medical Center where he was seen by emergency room physician Amanda Battisti. Douton reported feeling a maximum amount of pain and numbness in this left leg to the nurse. However, Dr. Battisti characterized his symptoms as moderate. He then received some minor testing and was discharged with a diagnosis of a pinched nerve and leg pain.

Douton returned home but the next day his pain and numbness progressed to total numbness, and he was then taken to Grand Strand Regional Medical Center. Where it was immediately determined that his left leg was in the process of dying as a result of poor blood flow. Bad weather prevented a helicopter from taking him to both Duke and MUSC. Douton eventually arrived MUSC by way of an ambulance but he died while on the way.

A lawsuit was filed by his estate based upon the claim that inexpensive testing would have led to a proper diagnosis at Conway Medical Center. The testing would have provided a 90% chance of his survival.

A jury awarded $1.5 million in actual damages against Conway Emergency Group, LLP.

Footnotes

[1] S.C. Code Ann. § 15-3-545

[2] S.C. Code Ann. § 15-79-110

[3] Ross v.Paddy, 340 S.C. 428, 532 S.E.2d 612 (Ct. App. 2000).

[4] S.C. Code of Laws Title 15, Chapter 32

[5] S.C. Code Ann. § 15-78- 40

[6] S.C. Code Ann. § 15-78-120

[7] S.C. Code Ann. § 15-79-120

[8] S.C. R. Civ. P. 12(a)

[9] S.C. R. Civ. P. 203