A. Definition

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

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 A malpractice action is, therefore, a category of negligence in which some additional considerations, including the general requirement for expert testimony apply. Not every action against a medical provider is for malpractice.⁴ There is "no rigid analytical line separating the two" and differentiating between them depends on the facts of each individual case.⁵ Absent an express contract in which the physician agrees to render a definite action, medical malpractice is a tort, not a contract, action.⁶ A prerequisite to a medical malpractice claim is the establishment of a doctor/patient relationship.⁷

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.⁸ On the other hand, the South Carolina Supreme Court has held no third-party cause of action for negligent diagnosis of sexual abuse exists.⁹

South Carolina does not recognize a claim for "medical battery," that is, an action based on either lack or revocation of consent to treatment.¹⁰ 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."¹¹

The South Carolina legislature added a condition to commencement of an action by adopting statutes requiring mediation of medical malpractice complaints.¹² 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.¹³ If the action is one for medical malpractice as defined by statute,¹⁴ then before an action is brought to trial, the parties must participate in mediation.¹⁵ The parties are required to participate in a mediation conference,¹⁶ after which, if the matter cannot be resolved through the mediation, the plaintiff may initiate the action by filing a summons and complaint.¹⁷ 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.¹⁸

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.¹⁹ The affidavit may be from an expert who does not practice in the same area of medicine as the allegedly negligent doctor.²⁰ 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."²¹ This requirement "encompasses only the breach element of a common law negligence claim and not causation."²² 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,²³ or where the alleged negligence involves subject matter within the ambit of "common knowledge and experience."²⁴ The statute does not extend an applicable period of limitation.²⁵ It provides procedures to be followed in the event an affidavit is defective,²⁶ or a plaintiff fails to file the required affidavit.²⁷ The South Carolina Supreme Court has decided this statute should be read in pari material with the statute requiring mediation,²⁸ so that the latter incorporates the former in its entirety.

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Notes:

^[2] Jernigan v. King, 312 S.C. 331, 440 S.E.2d 379, 381 (Ct. App. 1993). See also Keaton v. Greenville Hosp. Sys., 334 S.C. 488, 514 S.E.2d 570 (1999). And see Ardis v. Sessions, 383 S.C. 528, 531, 682 S.E.2d 249, 250, n. 3 (S.C. 2009) (noting that claim was for "chiropractic malpractice" and that "legal principles concerning professional malpractice claims generally remain constant from one profession to another").

^[3] Ward v. Epting, 290 S.C. 547, 351 S.E.2d 867...