SC Lawyer, Sept. 2005, #6. South Carolina tort reform: the 2005 changes to South Carolina's civil justice system.

• Author: By John Moylan

South Carolina Lawyer

2005.

SC Lawyer, Sept. 2005, #6.

South Carolina tort reform: the 2005 changes to South Carolina's civil justice system

South Carolina LawyerSeptember 2005South Carolina tort reform: the 2005 changes to South Carolina's civil justice systemBy John MoylanSpecial interest groups both in and out of South Carolina combined with South Carolina doctors, lawyers, insurance companies and businesses spent what has been estimated at more than five million dollars over the past few years in an effort to initiate and influence changes to our tort laws. After the dust cleared, the South Carolina General Assembly passed, and the Governor signed, two major pieces of legislation that significantly affect the way we practice law in South Carolina. Most of these changes took effect on July 1 of this year.

On March 21, 2005, the Governor signed Act Number 27, summary titled "Economic Development, Citizens, and Small Business Protection Act of 2005." This bill may be found in its entirety (and should be read by practitioners in its entirety) at www.scstatehouse.net/sess116_2005-2006/bills/3008.htm. Exactly two weeks later, the Governor signed Act Number 32, summary titled "Tort Reform Act of 2005 Relating to Medical Malpractice." This bill also should be read in its entirety at www.scstatehouse.net/sess116_2005-2006/bills/83.htm.

Like the old adage that you cannot judge a book by its cover, South Carolina lawyers should be careful not to judge these new laws strictly by their summary titles. For instance, the "Tort Reform Act of 2005 Relating to Medical Malpractice" not only affects medical malpractice litigation but also changes the procedure for making offers of judgment in all civil cases and changes the procedure for instituting lawsuits against, among others, certified public accountants, architects, lawyers, land surveyors, marriage and family therapists, professional engineers and veterinarians. The following summarizes some, but not all, of the more significant changes to our civil justice system brought about by these two new laws.

1. Before filing suit

   The two new laws contain several provisions that attorneys must consider before ever commencing a new lawsuit.

   1. Expert Affidavits are Now Required Before the Filing of a Complaint Alleging Professional Negligence - Not Just Medical Malpractice.

      The Medical Malpractice Act created a new statute, S.C. Code § 15-36-100, that requires plaintiffs to procure expert affidavits prior to the filing of a complaint alleging professional negligence against a licensed health care facility or against any of a long list of professionals provided the defendant, professional, is licensed or registered with the State of South Carolina. S.C. Code § 15-36-100(B).

      The affidavit must be filed as part of the complaint, and the expert must identify the negligent act or omission and the factual basis for the claim. This requirement applies before a complaint may be filed against any of the following 22 professionals: (1) architects; (2) attorneys; (3) certified public accountants; (4) chiropractors; (5) dentists; (6) land surveyors; (7) medical doctors; (8) marriage and family therapists; (9) nurses; (10) occupational therapists; (11) optometrists; (12) osteopathic physicians; (13) pharmacists; (14) physical therapists; (15) physicians' assistants; (16) professional counselors; (17) professional engineers; (18) podiatrists; (19) psychologists; (20) radiological technicians; (21) respiratory therapists; or (22) veterinarians. S.C. Code § 15-36-100(G).

      The legislature did allow for limited exceptions to the above affidavit requirements. First, if it appears that the statute of limitations will expire within 10 days of the filing of the complaint, the plaintiff may allege that an expert affidavit could not be prepared in a timely manner and then has 45 days after filing the complaint to supplement the pleadings with the affidavit or to seek an extension from the trial court. In addition, the statute requires no affidavit if the alleged negligence involved "subject matter that lies within...