Murky Waters of Medical Malpractice Procedure Clarified By Supreme Court

The South Carolina Supreme Court recently overturned a decision by the Charleston County Circuit Court that had dismissed a Plaintiff’s medical malpractice claim based on her failure to strictly adhere to statutory formalities of initiating a medical practice action action.  The Court’s decision helped clarify the process to commence a medical malpractice action – a procedure that is purposefully irregular with the legislative intent being to weed out frivolous claims by allowing for pre-litigation discovery and mediation. 

In the case of Wilkinson v. East Cooper community Hospital, et al, the Circuit Court dismissed Ms. Wilkinson’s medical malpractice claim with prejudice where she failed to file an affidavit of a medical expert contemporaneously with her complaint, despite the fact that an expert affidavit was filed previously with the court.  Under South Carolina law, a Notice of Intent to File Suit (“NOI”) must be filed before the Summons and Complaint can be filed  See § 15-79-125.  An affidavit of an expert witness must be filed contemporaneously with the NOI.  Id.  The parties are then required to participate in mediation within ninety (90) days of the NOI filing, see § 15-79-125(C), and if mediation is unsuccessful, then the plaintiff would have sixty (60) days from the end of mediation to file his or her complaint even if the statute of limitations has expired, see § 15-79-125(E).  Finally, § 15-36-100 requires that filing of the complaint must include an expert affidavit in support of the allegations.  If, however, the complaint is filed within ten (10) days of statute of limitation’s expiration, and an expert witness affidavit could not be obtained due to time restraints, then the plaintiff is allowed a forty-five (45) day window to supplement the complaint with a supporting affidavit from an expert witness.  See § 15-36-100(C)(1). 

In Wilkinson, the plaintiff filed a NOI approximately four days before the expiration of the statute of limitations, but she failed to file a supporting expert affidavit at that time, stating that she would file one shortly.  The plaintiff then filed her expert affidavit a month later.  In accordance with the statutory requirement, the parties participated in mediation, but were unsuccessful in settling, and Plaintiff filed her complaint five days after the failed mediation (now approximately four months past the statute of limitations).  The Defendant moved to dismiss the claim with prejudice alleging that (1) the statute of limitations had expired; (2) the statute of limitations was not tolled due to plaintiff’s failure to file an expert affidavit with her NOI; and (3) plaintiff did not file an expert affidavit with her complaint and she further failed to supplement the complaint with an affidavit within forty-five (45) days.  The circuit court found for the defendants, dismissing the complaint with prejudice, but the Supreme Court took the appeal on Wilkinson’s motion to certify and disagreed, reversing and remanding the lower court’s decision.  The Court held that the expert affidavit filed after Wilkinson’s NOI should satisfy the requirements outlined in § 15-36-100, and that by filing her NOI within the ten (10) days before the expiration of the statute of limitations, Ms. Wilkinson effectively tolled the SOL and was permitted to file her expert affidavit within forty-five (45) days.  The Court held that to require another expert affidavit to be filed with the complaint would be unnecessarily duplicative.  “[S]uch an interpretation is consistent with the Court’s decisions to permit medical malpractice cases to proceed on the merits rather than to affirm unwarranted dismissals based on technical compliance with the medical malpractice statutes.”  Wilkinson v. East Cooper Regional Medical Center, et al., opinion no. 27423 (S.C. July 23, 2014).


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