If you have been injured due to the fault of a doctor, dentist, or other health care professional in South Carolina, you can be compensated. South Carolina law requires that any claim for medical malpractice be commenced within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence. § 15-3-545 S.C. Code of Laws.
When the action is for damages arising out of the placement and inadvertent, accidental, or unintentional leaving of a foreign object in the body or person of any one or the negligent placement of any appliance or apparatus in or upon any such person by any licensed health care provider acting within the scope of his profession by reason of any medical, surgical, or dental treatment or operation, the action must be commenced within two years from date of discovery or when it reasonably ought to have been discovered; provided, that, in no event shall there be a limitation on the commencement of the action less than three years after the placement or leaving of the appliance or apparatus.
If a person entitled to bring an action against a licensed health care provider acting within the scope of his profession is under the age of majority at the date of the treatment, omission, or operation giving rise to the cause of action, the time period or periods limiting filing of the action are not tolled for a period of more than seven years on account of minority, and in any case more than one year after the disability ceases. Such time limitation is tolled for minors for any period during which 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.
Prior to filing suit against a health care provider for a medical malpractice action, the victim must file a Notice of Intent to File Suit along with a sworn affidavit by an expert witness outlining the claimed malpractice. Once the Notice of Intent to File Suit is filed, the statute of limitations is tolled. Within 90 days and no later than 120 days after the Notice of Intent to File Suit is served, the parties must engage in a mediation conference in an attempt to settle the matter. If after mediation the matter cannot be settled, the victim may file suit no later than sixty days after the mediation conference or before the statute of limitations runs, whichever is later. § 15-79-125.
The filing of the lawsuit does not end the obligation of mediation before trial. There will be one more mediation after the summons and complaint have been served. If the case cannot be resolved at this second and final mediation, it will proceed to trial.
Unfortunately in South Carolina, our legislature has chosen to limit awards for innocent victims of a medical professional’s negligence.
In South Carolina, there is a limit of $350,000 that a victim can receive for noneconomic damages against a health care provider. If a victim is successful against more than one health care provider, each health care provider will not have to pay in excess of $350,000 to the victim. The victim will not be able to recover more than $1,050,000 in noneconomic damages no matter how many health care providers are being sued in an action. Noneconomic damages are defined as damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury. § 15-32-220.
This means that if a doctor accidentally amputates a leg, a jury would have to limit the award to $350,000.00 if there was ordinary negligence. The physical impairment and disfigurement from losing a leg is a noneconomic damage. However, if a jury finds that the cause of the person’s noneconomic damage was due to the gross negligence of the health care provider, a jury is not limited by the $350,000.00 cap and can award whatever amount is appropriate.
In addition, noneconomic damages are not limited if the defendant has engaged in fraud or misrepresentation related to the claim, or if the defendant altered or destroyed medical records with the purpose of avoiding a claim or liability to the claimant.
Furthermore, punitive damages (damages designed to punish or deter the wrongdoer) are not limited in any way as long as the Plaintiff meets the legal standard for punitive damages.
Economic damages are not limited in any manner. "Economic damages" means pecuniary damages arising from medical expenses and medical care, rehabilitation services, costs associated with education, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, a claim for loss of spousal services, loss of employment, loss of business or employment opportunities, loss of retirement income, and other monetary losses.
In South Carolina, an expert testifying in a medical malpractice action must have superior knowledge than that possessed by an average juror. Most often an expert will be a licensed physician. An expert must testify to a reasonable degree of medical certainty that the defendant failed to comply with the relevant standard of care and thus is liable for the victim’s injuries.
If an injury due to medical malpractice was rendered in an emergency situation where there was a threat of serious injury or death, a health care provider must be found to be grossly negligent in order for a victim to recover. Also, if obstetrical care is rendered on an emergency basis where there is no doctor/patient relationship or if the victim has not received prenatal care, there must be a finding of gross negligence on the part of the health care provider in order to recover on a malpractice claim. Both the ER and ob/gyn physician limitation on liability only apply if the patient is not medically stable and: (1) in immediate threat of death; or (2) in immediate threat of serious bodily injury. § 15-32-230.
If you think you may have a valid claim against a health care professional for medical malpractice, call the experienced attorneys at Koon Cook & Walters, LLC for a free consultation.