All you need to know about medical negligence lawsuits—from the elements to prove to the statute of limitations
If you undergo surgery in South Carolina to have your infected right index finger amputated and the doctor accidentally amputates your left thumb, there’s a pretty good chance you can recover damages by filing a medical malpractice lawsuit.
But not all malpractice claims are so straightforward. For instance, childbirth complications might require a birth injury attorney to untangle complex issues of negligence.
Let’s take a look at medical malpractice claims in South Carolina, including the elements you need to prove to recover damages and the steps you need to take before you can even file a medical malpractice lawsuit.
What is medical malpractice?
The term “medical malpractice” is defined by the South Carolina Code of Laws Section 15-79-110(6) as follows:
To put it more simply, the term “medical malpractice” refers to a situation in which a licensed healthcare professional’s negligent act or omission causes an injury to a patient.
Examples of acts or omissions that commonly result in medical malpractice lawsuits include:
- Failure to diagnose an illness
- Misdiagnosis of an illness
- Prescribing improper medication or dosage
- Failure to warn a patient of known risks
- Failure to follow proper medical procedure
- Unnecessary surgery or surgery performed on the wrong site
Unbeknownst to her, Jodie was suffering from preeclampsia, a dangerous condition that is highly treatable if healthcare providers recognize it early and act quickly.
In Jodie’s case, her healthcare providers failed to identify her preeclampsia and Jodie went into cardiac arrest. Jodie didn’t breathe for roughly 20 minutes and, as a result, she is nearly brain dead and unable to move, speak, or recognize her newborn baby.
Jodie’s family filed a medical malpractice lawsuit on behalf of Jodie. The lawsuit alleged, among other things, that:
Prisma Health Richland Hospital ultimately settled the lawsuit for $2.1 million.
Elements to prove in a South Carolina medical malpractice lawsuit
To prove medical malpractice in South Carolina, you need to establish the following elements:
- The healthcare professional failed to exercise the degree of care and skill expected of an average, competent practitioner acting in the same or similar circumstances, and
- Such failure was the proximate cause of the plaintiff’s injury.
In South Carolina medical malpractice actions, expert testimony is required to establish that the healthcare professional failed to act competently and that the failure was the cause of the patient’s injury, unless the subject matter of the lawsuit falls within a layman’s common knowledge or experience.
Based upon his reading of the X-rays, Dr. Williams diagnosed and treated the injury as a severe ankle sprain. He expected the pain and swelling to subside in 1 month. Joe was released and allowed to walk on the injured foot using a walking cast.
When the cast was removed a month later, the foot was swollen and blue. Dr. Williams considered this condition to be normal and continued the same treatment. Over the next 9 months, the foot did not improve. Nevertheless, Dr. Williams did not change the treatment plan.
Believing something to be wrong, Joe went to an orthopedic specialist in Myrtle Beach. The specialist immediately diagnosed a fracture-dislocation of the foot, and corrective surgery was quickly performed.
At trial, Dr. Harry Rein testified on Joe’s behalf that:
- The injury to Joe’s foot was a common injury treated similarly by all physicians throughout the country, and
- Dr. Williams failed to meet the standard of care in his diagnosis and treatment of Joe’s foot (e.g., failed to order proper X-rays or diagnose the injury, failed to consult other physicians, and failed to refer Joe to a specialist).
Ultimately, the jury found that Dr. Williams committed malpractice and awarded Joe $40,000 in damages.
Filing a medical malpractice lawsuit in South Carolina
The steps you need to take to file a medical malpractice lawsuit are similar to the steps you need to take to file any other South Carolina personal injury lawsuit—with 2 significant exceptions:
- Notice of intent to file suit. Before filing a medical malpractice lawsuit, you must provide all of the healthcare professionals you intend to sue with a “notice of intent to file suit.” The notice must identify all the healthcare providers being sued and briefly state your basis for filing the lawsuit.
Within 90 days from the service of this notice, the parties must participate in a mediation conference unless an extension is granted by the court.
- Expert affidavit. Before filing a medical malpractice lawsuit, you must file with the court an expert affidavit. The affidavit must be prepared by a medical expert witness and must state the expert’s belief that the defendant committed at least 1 medically negligent action (or inaction).
South Carolina medical malpractice statute of limitations
South Carolina limits the amount of time you have to file a medical malpractice lawsuit. This time constraint is called the statute of limitations.
Under the South Carolina Code of Laws Section 15-3-545, you have 3 years from the date of the negligent act or from the date you reasonably should have discovered that you were injured by the negligent act to file a medical malpractice lawsuit.
South Carolina also has a 6-year statute of repose, meaning that in no circumstance can you file a lawsuit more than 6 years after the negligent act.
To make things more complicated, South Carolina has a different statute of limitations for cases in which a “foreign object” (such as a medical instrument) is left in the body after surgery. In those cases, the lawsuit must be filed within 2 years of the date the foreign object is discovered and the 6-year statute of repose doesn’t apply.
What damages can be recovered in a South Carolina medical malpractice lawsuit?
If you file a medical malpractice lawsuit in South Carolina, you may be able to recover the following types of damages:
- Economic damages are the monetary losses caused by your injury (e.g., medical expenses, lost wages, etc.).
- Non-economic damages are the non-monetary losses caused by your accident (e.g., pain and suffering, loss of consortium, etc.).
- Punitive damages are intended to punish the defendant. Punitive damages are only available if the defendant’s actions were willful or reckless.
Unfortunately, South Carolina caps the amount of non-economic damages you can recover in a medical malpractice case. Specifically, non-economic damages are capped at $350,000 per defendant and can’t exceed $1.05 million for all defendants.
South Carolina good Samaritan laws
Have you ever declined to help someone experiencing a medical emergency based on a concern that you might be sued if something goes wrong?
Worried that potential good Samaritans are too scared of being sued to help others, South Carolina passed a good Samaritan law. South Carolina Code of Laws Section 15-1-310 says that any person who renders emergency care at the scene of an accident or emergency will NOT be held liable for any accidental damages that result so long as the actions didn’t amount to gross negligence.
Did you know that medical malpractice law varies by state?
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