Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
For injuries that occur in emergency rooms, in order to succeed in a medical malpractice action Georgia requires that a patient alleging injury prove that the doctor's acts rose to the level of gross negligence. That standard is extremely difficult for an injured patient to prove.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
In South Carolina, non-economic (pain and suffering) damages against a single defendant are capped at $350,000, regardless of the serverity of the injury. For actions against multiple defendants, non-economic damages for each claimant are capped at $350,000 per defendant, and are capped at $1,050,000 for each claimaint against all defendants in the action. The caps are adjusted annually for inflation. The caps do not apply against a defendant who is found to be grossly negligent, willful, wanton, or reckless,with that conduct being the proximate cause of the plaintiff's actions, if the defendant committed fraud or misrepresentation relating to the claim, or if the defendant alterered or destroyed medical records with the purpose of avoiding a claim or liability to the claimant.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. South Carolina follows a rule of modified joint and several liability, pursuant to which any defendant who is determined to be less than fifty percent at fault for the plaintiff's injury, as compared to the fault of all other defendants and the comparative negligence, if any, of the plaintiff, is liable only in proportion to that defendant's degree of fault for the indivisible damages.
The Collateral Source Rule
South Carolina follows the traditional collateral source rule, pursuant to which payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. The statute of limitations for medical malpractice actions in South Carolina is three years from the date of the act or omission alleged to have caused the injury, or two years from the date the cause reasonably should have been discovered, not to exceed six years. For a foreign object found within the plaintiff's body, the statute of limitations is two years from the date the object was or reasonably should have been discovered, but not less than three years from the date the object was left in the patient's body.
For minors the statute of limitations is tolled during the period of minority, but the statute of limitations may not be tolled for more than seven years or by more than one year after the minor reaches the age of eighteen. For minors, the statute of limitations is also tolled for any period during which the minor's parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor.
Additional rules affecting malpractice litigation in the State of South Carolina include:
Alternative Dispute Resolution
In a South Carolina medical a medical malpractice case, a plaintiff is required to file a Notice of Intent to File Suit before filing a medical malpractice lawsuit. Within ninety days and no later than 120 days from the service of that notice, the parties must participate in a mediation conference, unless the court grants an extension of up to sixty days based upon a finding of good cause.
Additionally, prior to the trial of a malpractice case the parties are required to participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules. Parties may also agree to participate in other forms of binding or non-binding alternative dispute resolution. Participation in prelitigation mediation does not remove this requirement.
Affidavit of Merit Rules
An affidavit of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In South Carolina, the plaintiff must file as part of the complaint in a medical malpractice case the affidavit of a qualified expert witness, that must specify at least one negligent act or omission that the plaintiff claims to have occurred, and the factual basis for each claim based upon evidence available to the plaintiff at the time the affidavit is filed. Where the statute of limitations will expire, or the plaintiff reasonably believes that it will expire, within ten days of the date of the filing of the complaint, the plaintiff may file an affidavit attesting that due to the time constraint an affidavit from an expert could not be obtained before filing. If that occurs, the plaintiff must file the affidavit within forty-five days after filing the complaint. The deadline may be extended by the trial court if the court determines that justice requires. If an affidavit is not filed in a timely manner, the complaint is subject to dismissal for failure to state a claim. If a defendant seeks dismissal of a malpractice action based upon the allegation that the affidavit is defective, the plaintiff may cure the defect within thirty days of service of the motion or a longer period authorized by the court consistent with the interest of justice.
No affidavit is required if the complaint alleges acts of negligence involving subject matter that lies within the scope of common knowledge and experience, such that no special learning is needed to evaluate the conduct of the defendant.
Medical Expert Witness Restrictions
In order to testify as an expert witness in a medical malpractice case, proposed experts must be appropriately licensed to practice their professions in the jurisdiction in which they practice or teach their profession. The proposed epxert must be board certified in the area of practice or specialty about which their opinion on standard of care is offered, or have actual knowledge and experience in that area by virtue of their professional knowledge and experience in the area of practice or specialty as a result of active practice, teaching the practice or specialty for at least half of the proposed expert's professional time, or a combination of practice and teaching, for at least three of the five years preceding the action.
A proposed expert who does not meet those requirements may still be permitted to testify if the expert has scientific, technical, or other specialized knowledge that 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, if an expert qualifying under this exception prepares the affidavit of an expert to be filed at the commencement of a malpractice case, the affidavit must include an
explanation of the expert's credentials and why the expert is qualified to conduct the review. The defense may challenge the sufficiency of the expert's credentials.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under South Carolina's apology law, conduct, statements, or activity constituting voluntary offers of assistance or expressions of benevolence, regret, mistake, error, sympathy, or apology between or among parties to a civil action are not considered to be admissions of liability. When this rule applies, the defendant may waive the inadmissibility of the statement.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.