D. Defenses

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

D. Defenses⁵⁷

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."⁵⁸ The six-year period is the outer limit beyond which an action is barred, regardless of when discovered.⁵⁹ The statute begins to run at the time of an alleged negligent act or omission by a medical professional based on which a plaintiff seeks to impose liability in an action for malpractice. Thus, when a defendant breaches the standard of care on multiple occasions, the statute begins to run with each breach, resulting in recent breaches being actionable even though older ones may not be.⁶⁰

The statute applies to causes of action arising under the Tort Claims Act.⁶¹ 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.⁶² The South Carolina Supreme Court has declined to adopt either the continuous treatment rule or the doctrine of continuing tort;⁶³ 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.⁶⁴

The South Carolina Tort Claims Act would be applicable where a government hospital is involved.⁶⁵ The Act waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. It contains, however, many limitations on liability and damages⁶⁶ that may preclude or restrict a plaintiff's cause of action.⁶⁷ One is the statute of limitations which is two years, one year less than the usual limitation for malpractice actions.⁶⁸ It has been held that the difference in limitations between governmental and private hospitals is not a denial of equal protection.⁶⁹ 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.⁷⁰ If the employee is named as a defendant, the name of the appropriate governmental entity must be substituted.⁷¹ 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 ...⁷²

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.⁷³

While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981,⁷⁴ the decision does not have retroactive application.⁷⁵ There is a statutory limitation on liability for charitable organizations.⁷⁶ A "charitable organization" is any organization, institution, association, society, or corporation exempt from taxation pursuant to" provisions of the federal tax code.⁷⁷ A person "sustaining injury or dying"⁷⁸ as a result of a tortious act of commission or omission by an employee⁷⁹ 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 Act⁸⁰ for actual damages sustained. The upper limit on liability is generally $300,000 on a claim for a loss arising from a single occurrence,⁸¹ 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.⁸² The statutory caps have withstood constitutional challenge.⁸³ 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.⁸⁴ 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.⁸⁵

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.⁸⁶ Contributory negligence requires the defendant show the plaintiff was negligent⁸⁷ and that the negligence was the proximate cause of the injuries.⁸⁸ 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.⁸⁹ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.⁹⁰

Assumption of the risk is a defense to negligence that is recognized in South Carolina in two forms: express assumption and implied assumption.⁹¹ 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.⁹² The doctrine has application to medical malpractice actions.⁹³ 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.⁹⁴

In Coggeshall v. Reprod. Endocrine Assocs., the South Carolina Supreme Court addressed the issue of jurisdiction in an action against an out-of-state physician and said that since medical care is of "such a personal nature," jurisdiction over an out-of-state doctor is generally not exercised absent other circumstances indicating a "purposeful availment of the forum state's market."⁹⁵

The emergency medical and obstetrical care statute provides that for a medical malpractice claim arising out of care rendered in a genuine emergency involving an immediate threat of death or serious bodily injury to a patient receiving care in an emergency department or an obstetrical or surgical suite, no physician may be held liable unless proven to have been grossly negligent.⁹⁶ Also, for a medical malpractice claim arising out of obstetrical care rendered by a physician on an emergency basis when there is no previous doctor/patient relationship between the physician or a member of his practice with a patient or the patient has not received prenatal care, the physician is not liable unless proven to have been grossly negligent.⁹⁷ These limitations liability only apply if the patient is not medically stable and in immediate threat of death or serious bodily injury.⁹⁸ Finally, the limitations only apply to care rendered prior to a patient's discharge from an emergency department or obstetrical or surgical suite. To invoke the statute, a physician must prove that the claim arises out of a genuine emergency situation, the patient was not medically stable, and that the patient was under an immediate threat of death or serious bodily injury.⁹⁹

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