South Dakota Medical Malpractice Summary
Statutes of Limitations
Medical malpractice claimants must bring suit within three years from the date of the occurrence or the date when the occurrence should have been discovered, but in no case more than six years from the date of the occurrence. S.C. Code Ann. § 15-3-545 (Law. Co-op. Supp. 1997). Foreign object cases may be brought within two years from the date of discovery. Id. The statute of limitations is tolled during the claimant’s minority; however, the period may not extend beyond seven years from the date of the occurrence, or more than one year after the child attains the age of majority, whichever period is shorter. Id. The statute is also tolled during a claimant’s insanity, but the tolling period cannot extend more than five years from the date of the occurrence or one year beyond the date the disability ceases.. S.C. Code Ann. § 15-3-40 (Law. Co-op. Supp. 1997).
An action to recover for medical malpractice resulting in death is governed by the foregoing, not by S.C. Code Ann. § 15- 3-530 (Law. Co-op. Supp. 1997), the wrongful death statute of limitations. Garner v. Houck, 312 S.C. 481, 435 S.E.2d 847 (1993).
Contributory or Comparative Negligence
South Carolina has adopted the modified doctrine of comparative negligence for all causes of action arising on or after July 1, 1991. Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). A plaintiff in a negligence action may recover damages if his negligence is less than or equal to that of all the defendants. The amount of the plaintiff’s recovery shall be reduced in proportion to the amount of his negligence. Id. For causes of action arising prior to that date any negligence by the claimant bars recovery altogether. South Carolina Insurance Co. v. James C. Greene & Co., 290 S.C. 171, 348 S.E.2d 617 (Ct. App. 1986).
Joint and Several Liability
South Carolina adheres to the rule that joint tortfeasors are jointly and severally liable. S.C. Code Ann. § 15-38-20 (Law. Co-op. Supp. 1997). Thus, any tortfeasor against whom judgment has been entered may be liable to the claimant for the entire judgment, regardless of the tortfeasor’s share of fault.
South Carolina affords joint tortfeasors a right to contribution. S.C. Code Ann. § 15-38-20 (Law. Co-op. Supp. 1997). A settling tortfeasor is not entitled to contribution from any other tortfeasor whose liability to the claimant is not extinguished by the settlement. S.C. Code Ann. § 15-38-20(D) (Law. Co-op. Supp. 1997). In determining the amount of contribution for which a tortfeasor is liable, the relative degrees of fault are not factors; instead, liability is apportioned equally among the tortfeasors. S.C. Code Ann. § 15-38-30 (Law. Co-op. Supp. 1997).
The right of contribution may be enforced in the original action or in a separate action. S.C. Code Ann. § 15-38-40 (Law. Co-op. Supp. 1997).
Vicarious liability can be imposed on a hospital for the act of a physician under the theory of apparent agency if (a) the hospital consciously or impliedly represented that the doctor was its agent, (b) plaintiff relied upon the representation, and (c) plaintiff detrimentally changed positions. Strickland v. Madden, 323 S.C. 63, 448 S.E.2d 581 (Ct. App. 1994).
South Carolina does not require a claimant in a medical malpractice case to attach an expert affidavit to the complaint to verify the validity of the claim. Like most states, South Carolina does, however, require the introduction of expert testimony in medical malpractice actions to prove that the defendant failed to conform to the applicable standard of care. Fawler v. Basily, 297 S.C. 68, 374 S.E.2d 693 (Ct. App. 1988). Expert testimony is not required if a layman would be capable of inferring negligence from the alleged acts. Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978).
South Carolina does not impose a cap on the amount of damages that a claimant can recover in a medical malpractice case. (However, see Patient Compensation Funds and Physician Insurance on the related issue of state-sponsored excess coverage.)
Statutory Cap on Attorneys’ Fees
South Carolina does not impose a statutory cap on attorneys’ fees, nor does it require the court to review contingent fee arrangements.
South Carolina does not mandate the periodic payment of medical malpractice judgments.
Collateral Source Rule
South Carolina follows the collateral source rule. Estate of Rattenni v. Grainger, 298 S.C. 276, 379 S.E.2d 890 (1989). Thus, medical malpractice defendants may not offer evidence of the claimant’s receipt of payments from third parties, such as insurance, as a means of reducing the claimant’s recovery.
South Carolina does not have a statute authorizing the award of pre-judgment interest in personal injury actions. In the absence of an agreement or a statute, a claimant cannot recover pre-judgment interest for unliquidated damages. Republic Textile Equipment Co. v. Aetna Insurance Co., 293 S.C. 381, 360 S.E.2d 540 (Ct. App. 1987). Therefore, pre-judgment interest ordinarily will not be recoverable in medical malpractice actions.
Patient Compensation Funds and Physician Insurance
South Carolina has established a Patients’ Compensation Fund to benefit licensed health care providers. The Fund is responsible for the payment of that portion of any medical malpractice or general liability judgment or settlement which exceeds $100,000 per incident and $300,000 in the annual aggregate. S.C. Code Ann. § 38-79-420 (Law. Co-op. Supp. 1997).
All health care providers have the option of participating in the Fund. S.C. Code Ann. § 38-79-440 (Law. Co-op. 1989). As members, the health care provider must pay an annual fee. S.C. Code Ann. § 38-79-450 (Law. Co-op. 1989). Upon being served with a complaint, the health care provider will notify the Fund’s Board of Governors of the action. S.C. Code Ann. § 38-79-480 (Law. Co-op. 1989). If the board determines that the damage amounts may exceed $100,000, the Fund can be actively defended in the suit. The insurer providing liability insurance to the health care provider must provide an adequate defense so as to prevent impairment of the Fund. Settlements that exceed $100,000 must be approved by the Board of Governors. Id.
In reaction to a judicially-expressed concern over the traditional law of complete governmental immunity, the South Carolina legislature waived to a limited extent its immunity in tort for the state and its political subdivisions. S.C. Code Ann. § 15-78- 40 (Law. Co-op. Supp. 1997). This limited waiver is only applicable to claims arising after July 1, 1986, and, in particular, only to claims relating to acts of state health care providers for actions occurring after January 1, 1989. S.C. Code Ann. § 15-78-20 (Law. Co-op. Supp. 1997). The act specifically limits the definition of “state employee” to physicians and dentists who receive their salary directly from a governmental entity, as opposed to physicians granted staff privileges at a state-operated institution. S.C. Code Ann. § 15-78-30 (Law. Co-op. Supp. 1997).
The act immunizes from liability those employees acting within the scope of their employment, unless their alleged conduct constituted fraud or malice. The claimant need only name the political subdivision, and not the employee, in a suit. S.C. Code Ann. § 15-78-70 (Law. Co-op. Supp. 1997).
A plaintiff must file notice of the claim with the political subdivision verifying the claim for damages and setting forth the facts underlying the claim. S.C. Code Ann. § 15-78-80 (Law. Co-op. Supp. 1997). This notification must be received by the political subdivision within one year after the loss is discovered, otherwise the claim is barred. If the governmental entity disallows the claim or fails to react to the claim within 180 days, the claimant has the right to file an action in court. Id. Regardless of the notification provision, a claim must be filed in court within two years after the loss was discovered. S.C. Code Ann. § 15- 78-100 (Law. Co-op. Supp. 1997). However, if the governmental entity disallowed the claim, the claimant has three years in which to file the suit. Id.
Under the tort claims act, governmental entities’ liability is limited to $250,000 per claim and, in physician cases, $1,000,000 per occurrence. S.C. Code Ann. § 15-78-120 (Law. Co-op. Supp. 1997). These limits will go to $300,000 and $1,200,000 on July 1, 1998. Id. Also, neither the state nor its political subdivisions may be liable for punitive damages or pre-judgment interest. Id.
South Carolina does not require that medical malpractice claims be reviewed by an arbitrator or a screening panel prior to suit.
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Revision Date: February 6, 1998