C. Elements Defined

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

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."³² 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."³³ 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.³⁴

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.³⁵ 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.³⁶

An action based on informed consent is no different from other actions for professional malpractice.³⁷

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.³⁸ The Supreme Court discarded the rule, although local practice may be a factor for consideration in determining the standard of care.³⁹ Unless the subject matter is within common knowledge and experience, the standard of care must be established by expert testimony.⁴⁰ 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.⁴¹

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.⁴²

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.⁴³ 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.⁴⁴ 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.⁴⁵ 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."⁴⁶

In Ardis v. Sessions,⁴⁷ the 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.⁴⁸ Generally, expert testimony is required to establish proximate cause in medical malpractice cases,⁴⁹ 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."⁵⁰ 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 alleged negligence of the defendant.⁵¹

When the plaintiff's action is based on lack of informed consent, he or she has the burden to show that any deviation from the standard of care was the proximate cause of the injury by showing a reasonable person, having been properly informed, would have chosen not to have the procedure.⁵² Apparently, expert testimony is not required to establish proximate cause in an informed consent claim.⁵³

When expert testimony is not relied on, it is sufficient for the plaintiff to put forth evidence of proximate cause which "rises above mere speculation or conjecture."⁵⁴

The physician's negligence may be deemed a proximate cause of the injury only when without the negligence the injury would not have occurred or could have been avoided.⁵⁵

Regarding proximate cause in general, the South Carolina Supreme Court has said:

Proximate cause requires proof of: (1) causation in fact and (2) legal cause.
Causation in fact is proved by establishing the injury would not have

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