August 4, 2014

SC Supreme Court gives filing break to people who sue doctors, hospitals

A recent 4-to-1 decision by the S.C. Supreme Court clarified state law concerning filing deadlines that people who sue doctors and hospitals for medical malpractice have to meet.

Vicki Wilkinson likely will get her day in court to sue a hospital she says harmed her during a medical procedure.

That’s the result of a recent 4-to-1 decision by the S.C. Supreme Court, which recently clarified state law concerning filing deadlines that people who sue doctors and hospitals for medical malpractice have to meet.

The decision was a defeat for the S.C. Hospital Association, which had argued in a friend of the court brief that Wilkinson’s case should be tossed out.

Wilkinson’s lawsuit had been dismissed in 2012 before it even got to trial by Circuit Court Judge Markley Dennis, who ruled that Wilkinson had, basically, missed a deadline in filing required documents in the case.

She also failed to file them in the prescribed way, he ruled.

But the Supreme Court overturned that ruling, saying that Wilkinson – who alleged she suffered harm after a 2008 procedure at East Cooper Regional Medical Center in Charleston County – can go forward with her lawsuit.

Unclear wording in an existing law about filing deadlines isn’t reason enough to disqualify a medical malpractice lawsuit, the high court ruled.

Letting Wilkinson’s case continue is consistent with previous Supreme Court rulings that “permit medical malpractice cases to proceed on the merits rather than to affirm unwarranted dismissals based on technical noncompliance with the medical malpractice statutes,” the court ruled.

Protocol for filing a suit

Under medical negligence reforms passed by the S.C. General Assembly several years ago, a plaintiff bringing a medical malpractice lawsuit has to meet certain conditions and deadlines before being able to go to trial.

First, a person wanting to sue must find a lawyer who will obtain the medical records and then get a medical expert – usually a doctor in another state – to review the allegations. Only after a medical expert reviews the case and files a sworn affidavit saying the case has merit can the person’s case proceed.

After that but still before trial, the different sides must get together and try to reach a settlement that will do away with the need for trial.

If that mediation process fails, only then can the lawsuit move forward, according to state law.

Under the law, a plaintiff has three years to file a medical negligence case. But the law was unclear whether a plaintiff who decided to sue in the last weeks of the three-year period can file a notice of intent to sue and then get another 45 days to file the actual lawsuit and a medical expert’s affidavit.

“I’m glad the Supreme Court cleared this up,” said plaintiff’s lawyer John Nichols of Columbia, who handled Wilkinson’s case with lawyer Nathan Hughey of Mt. Pleasant. “If you’ve got a valid case, judges are not supposed to be throwing them out.”

Nichols said hospitals and doctors should be glad the Supreme Court clarified the issue.

“Now everyone knows,” he said.

‘Enforce procedural safeguards’

The S.C. Hospital Association, which filed a friend of the court brief with the Supreme Court, had argued against giving Wilkinson an extended deadline to bring her lawsuit to trial, saying an adverse decision could hurt hospitals.

Whatever the Supreme Court decides “will apply to all future medical malpractice cases in South Carolina, many of which will be filed against S.C. Hospital Association members,” argued association lawyer Andrew Mathias of the Nexsen Pruet law firm.

The association is made up of some 100 member hospitals and is “the collective voice of the state’s hospital community,” according to Mathias’ brief. He argued that the Supreme Court should “enforce procedural safeguards deliberately enacted by the General Assembly to protect medical malpractice defendants from the time, expense and unnecessary burden of frivolous lawsuits...”

Efforts to reach a spokesperson with the S.C. Hospital Association were unsuccessful Monday.

Wilkinson will still have to prove her case before a jury, if her lawsuit gets that far.

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