D. Defenses

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

D. Defenses¹⁹

The statute of limitations for medical malpractice actions provides that "[i]n any action ... to recover damages for injury to the person arising out of any medical, surgical, or dental treatment or omission, or operation by any licensed health care provider ... acting within the scope of his profession must 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 the date of discovery or when it reasonably should have been discovered, not to exceed six years from the date of occurrence, or as tolled by this section."²⁰ The six-year period is the outer limit beyond which an action is barred, regardless of when discovered.²¹ The statute applies to causes of action arising under the Tort Claims Act.²² Based on the "clear language of the statute," both contract and negligence actions are controlled by the statute where damages are sought for injury arising out of medical treatment.²³ The South Carolina Supreme Court has declined to adopt either the continuous treatment rule or the doctrine of continuing tort;²⁴ however, some latitude for discovery of an injury in the medical malpractice context is permitted, given the expert knowledge that may be required to determine there is an injury.²⁵ No South Carolina case has addressed whether the statute is applicable to wrongful birth actions. Query whether a wrongful birth action is an "action to recover damages for injury to the person."

The South Carolina Tort Claims Act would be applicable where a government hospital is involved.²⁶ The Act waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.²⁷ It contains, however, many limitations on liability and damages²⁸ which may preclude or restrict a plaintiff's cause of action.²⁹ One is the statute of limitations which is two years, one year less than the usual limitation for malpractice actions.³⁰ It has been held that the difference in limitations between governmental and private hospitals is not a denial of equal protection.³¹ Ordinarily, only the governmental entity may be named as a party defendant, and the employee committing a tort while acting within the scope of his or her official duties is not personally liable unless the conduct in question constituted actual fraud, actual malice, intent to harm, or was a crime of moral turpitude.³² If the employee is named as a defendant, the name of the appropriate governmental entity must be substituted.³³ These provisions:

... in no way shall limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any action or claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any source other than salary appropriated by the governmental entity or fees received from any practice plan authorized by the employer ...³⁴

In a case involving a federal facility it was held that the misrepresentation exclusion of the Federal Tort Claims Act³⁵ does not bar a claim for wrongful birth.³⁶

Contributory negligence is a defense in a negligence action and may be applicable to medical malpractice actions where the plaintiff fails to inform the physician of health conditions or to follow the physician's advice.³⁷ Contributory negligence requires the defendant show the plaintiff was negligent³⁸ and that the negligence was the proximate cause of the injuries.³⁹ Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence.⁴⁰ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.⁴¹

Assumption of the risk is a defense to negligence that is recognized in South Carolina in two forms: express assumption and implied assumption.⁴² Express assumption derives from an agreement to waive liability whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it.⁴³ The doctrine has application to medical malpractice actions.⁴⁴ A plaintiff is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.⁴⁵

While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981,⁴⁶ the decision does not have retroactive application.⁴⁷ There is a statutory limitation on liability for charitable organizations.⁴⁸ A "charitable organization" is any organization, institution, association, society, or corporation which is exempt from taxation pursuant to 26 U.S.C. § 501(c)(3) or (d).⁴⁹ A person "sustaining injury or dying"⁵⁰ as a result of a tortious act of commission or omission by an employee⁵¹ of a charitable organization acting within the scope of his or her employment, may recover no more than the liability imposed under the Tort Claims Act⁵² for actual damages sustained. The upper limit on liability is generally $300,000 on a claim for a loss arising from a single occurrence,⁵³ and $1.2 million because of loss arising from a single occurrence when the defendant is a licensed physician or dentist acting within the scope of his her profession.⁵⁴ The statutory caps have withstood constitutional challenge.⁵⁵ Unless it is proved that the employee acted recklessly, willfully, or in gross negligence, an action against the charitable organization is a complete bar to recovery against the employee.⁵⁶ Where a defendant is both a governmental and charitable organization, the Tort Claims Act provides the exclusive remedy, and the action is governed by it rather than the charitable immunity statute.⁵⁷

To the extent wrongful birth is considered a medical malpractice action, a statute added by the South Carolina legislature will apply and require, as a condition to commencement of any action, mediation of the complaint.⁵⁸ 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.⁵⁹ If the action is one for medical malpractice as defined by statute,⁶⁰ then before an action is brought to trial, the parties must participate in mediation.⁶¹ The parties are required to participate in a mediation conference,⁶² after which, if the matter cannot be resolved through the mediation, the plaintiff may initiate the action by filing a summons and complaint.⁶³ 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.⁶⁴

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.⁶⁵ 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."⁶⁶ This requirement "encompasses only the breach element of a common law negligence claim and not causation."⁶⁷ 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,⁶⁸ or where the alleged negligence involves subject matter within the ambit of "common knowledge and experience."⁶⁹ The statute does not extend an applicable period of limitation.⁷⁰ It provides procedures to be followed in the event an affidavit is defective,⁷¹ or a plaintiff fails to file the required affidavit.⁷² The South Carolina Supreme Court has decided this statute should be read in pari material with the statute requiring mediation,⁷³ so that the latter incorporates the former in its entirety.

Finally, by statute, in a medical malpractice claim when final judgment is rendered against a single health care provider or institution,⁷⁴ the limit of civil liability for noneconomic damages of the health care provider is generally limited to $350,000 for each claimant, regardless of the number of separate causes of action on which the claim is based.⁷⁵ The statute does not limit the amount of punitive damages where the plaintiff is able to prove an entitlement...