29 Medical Malpractice

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

29 Medical Malpractice¹

A. Definition

Medical malpractice is "the failure of a physician to exercise that degree of care and skill which is ordinarily employed by the profession generally, under similar circumstances and in like surroundings."² The action must involve charges of deviation from that standard of care.³ Absent an express contract in which the physician agrees to render a definite action, medical malpractice is a tort, not a contract, action.⁴ A prerequisite to a medical malpractice claim is the establishment of a doctor/patient relationship.⁵ Of course, not every action against a medical provider is for medical malpractice, and there are limited circumstances in which malpractice in treating a patient may be the basis for a negligence action against the physician by a third party.⁶ On the other hand, the South Carolina Supreme Court has held no third-party cause of action for negligent diagnosis of sexual abuse exists.⁷

South Carolina does not recognize a claim for "medical battery," that is, an action based on either lack or revocation of consent to treatment.⁸ Where there is a physical touching within the medical context, and a resulting injury, an action based on lack or revocation of consent must be brought as a medical malpractice claim. The patient who claims an injury as a result of a doctor's intentional act unrelated to medical care may bring a civil battery claim against the physician. The Court of Appeals has also rejected the tort of "medical abandonment" and determined it is but one form of medical malpractice. The court added that, like medical battery, medical abandonment would constitute an "unnecessary and superfluous cause of action."⁹

The South Carolina legislature added a condition to commencement of an action by adopting statutes requiring mediation of medical malpractice complaints.¹⁰ A plaintiff is now required to file a "Notice of Intent to File Suit" and an "affidavit of an expert witness" before commencing a civil action alleging injury or death as a result of medical malpractice.¹¹ If the action is one for medical malpractice as defined by statute,¹² then before an action is brought to trial, the parties must participate in mediation.¹³ The parties are required to participate in a mediation conference,¹⁴ after which, if the matter cannot be resolved through the mediation, the plaintiff may initiate the action by filing a summons and complaint.¹⁵ The action must be filed either within 60 days after the mediator determines the mediation is not viable, an impasse exists, or that the mediation should end, or prior to expiration of the statute of limitations, whichever is later.¹⁶

Another statute requires that in an action for damages alleging professional negligence against a professional licensed by or registered with the State or against any licensed health care facility alleged to be liable based on the action or inaction of a health care professional licensed by the State, the plaintiff has to file as part of the complaint an affidavit of an expert witness.¹⁷ The affidavit is required to "specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit."¹⁸ This requirement "encompasses only the breach element of a common law negligence claim and not causation."¹⁹ The contemporaneous filing requirement does not apply in certain circumstances where the period of limitation will expire within ten days of the date of filing,²⁰ or where the alleged negligence involves subject matter within the ambit of "common knowledge and experience."²¹ The statute does not extend an applicable period of limitation.²² It provides procedures to be followed in the event an affidavit is defective,²³ or a plaintiff fails to file the required affidavit.²⁴ The South Carolina Supreme Court has decided this statute should be read in pari material with the statute requiring mediation,²⁵ so that the latter incorporates the former in its entirety.

B. Elements²⁶

In order to recover in any negligence action, the plaintiff must show:

(1) a duty of care owed by the defendant to the plaintiff
(2) a breach of that duty by a negligent act or omission
(3) damages proximately resulting from the breach.²⁷

Sometimes the damages element is separated from proximate causation to create four elements.²⁸

C. Elements Defined

1. A Duty of Care Owed by the Defendant to the Plaintiff

Duty of care is "that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care."²⁹ In a medical malpractice action the duty of care requires that physician must use "that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions and in like surrounding circumstances."³⁰ There may also be a duty on a consulted physician to report abnormal test results to the treating physician if the results indicate a need for further follow-up or treatment.³¹

In addition to the duty of care in treatment, under the doctrine of informed consent, a physician performing a diagnostic, therapeutic, or surgical procedure has a duty of disclosure to a patient of sound mind in a non-emergency situation.³² The disclosure must include:

(1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not carried out, and (6) the existence of any alternatives to the procedure.³³

An action based on informed consent is no different from other actions for professional malpractice.³⁴

Previously, South Carolina adhered to the "locality rule" in which physicians were held to a degree of skill and learning possessed and exercised by members of the profession in good standing in the general neighborhood or similar locales.³⁵ The Supreme Court discarded the rule, although local practice may be a factor for consideration in determining the standard of care.³⁶ Unless the subject matter is within common knowledge and experience, the standard of care must be established by expert testimony.³⁷ Where, however, the defendant conceded that the plaintiff's injury was caused by a defective surgical drill, the concession "removed the need for expert testimony" regarding standard of care about operation of the drill.³⁸

The Court of Appeals addressed the duty of a health care provider to prevent a suicide by a patient no longer in its custody. The plaintiff's decedent was a prisoner. He claimed to have made a suicide attempt. The prison sent him to the health care facility with which it contracted for services. The prisoner was treated and released. Over a year later he committed suicide. The trial court decided the defendant's duty of care to prevent suicide existed only on when the defendant had custody of the suicidal person. The appellate court affirmed, agreeing there was no duty and that states that have considered whether a duty continues once a patient is released have found the duty ceases on discharge of the patient.³⁹

2. A Breach of That Duty by a Negligent Act or Omission

The plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures.⁴⁰ The fact that a complication occurred in the course of treatment is not itself evidence of negligence because South Carolina does not recognize the doctrine of res ipsa loquitur.⁴¹ The defendant's failure to conform to the standard must generally be shown by expert testimony unless the subject matter is within common knowledge and experience.⁴² Where the plaintiff seeks to show lack of informed consent, it must be proven by expert medical testimony establishing: "(1) the professional standard for disclosure in the defendant's branch of medicine; and (2) the defendant's breach of that standard in the circumstances of the particular case."⁴³

In Ardis v. Sessions,⁴⁴the trial court charged the jury that:

... a physician is not ordinarily liable for making an incorrect diagnosis where it is made in good faith and there is reasonable doubt as to the nature of the physical conditions involved or as to what should be done in accordance with recognized authority in good current practice or where it is made in good faith on observation of the patient and based upon physical evidences and symptoms which would warrant such diagnosis by a reasonably prudent and informed physician.

The South Carolina Supreme court held that the "good faith" jury charge was improper in a professional malpractice case because it implies that an error in judgment is actionable only if made in bad faith and required the plaintiff to demonstrate not only a departure from the standard of care, but that any error was made in bad faith. The "good faith" instruction, said the court, impermissibly adds a subjective component that is contrary to objective professional negligence law.

3. Damages Proximately Resulting from the Breach

The plaintiff must show a causal relationship between the negligence, the failure to adhere to the standard of care, and the injury.⁴⁵ Generally, expert testimony is required to establish proximate cause in medical malpractice cases,⁴⁶ and must be employed where "... either the origin of the injury is obscure and not readily apparent to a layperson or where there are several equally probable causes of the condition."⁴⁷ And, when the opinions of medical experts are relied upon to establish the causal connection of negligence to injury, the proper test to be applied is that the expert must, with reasonable certainty, state that in his professional opinion, the injuries complained of most probably resulted from the...