Caps on Medical Malpractice Damages (Part 1)
For medical malpractice cases arising on or after July 1, 2005, which placed caps on non-economic damages a patient could recover from a liable defendant health care provider. S.C. Code ? 15-32-220(a) limits the civil liability for non economic damages of the health care provider to an amount not to exceed $350,000 for each claimant regardless of the number of separate causes of action on which the claim is based. S.C. Code ? 15- 32-220(a) provides an exception to the foregoing cap where the health care provider is proven to be grossly negligent, willful, wanton or reckless and that conduct was the proximate cause of the claimant's non economic damages. S.C. Code ? 15-32-220(b) provides that the $350,000 cap is limited to each claimant. S.C. Code ? 15-32-220(c) allows a claimant to stack his claim, and provides that up to three health care providers may be subject to the $350,000 cap per claimant, for a total of $1,050,000 per claimant.
Caps on Medical Malpractice Damages (Part 2)
The non-economic damage cap of $350,000 per medical entity or practice or person does not apply to economic damages and does not apply to punitive damages. Effective for medical malpractice cases arising on or after July 1, 2005, S.C. Code ? 15-32-230 further limits liability with regard to emergency obstetrical or emergency department situations. This section eliminates liability on behalf of any person providing emergency care or emergency obstetrical care to a person in immediate threat of death or an immediate threat of serious bodily injury while in an emergency room, obstetrical or surgical suite, unless the health care provider is proven to be grossly negligent. Other caps or limitations may be applicable to a medical malpractice case as well.
Statute of Limitations (Part 1)
There are time limits on bringing a personal injury lawsuit in the state of South Carolina known as statutes of limitations. See S.C. Code ? ? 15-3-530(5); 15-3-535. While a medical malpractice personal injury suit is generally subject to a three year statute of limitations, there may be exceptions depending on the circumstances, such as a medical malpractice case where the negligent conduct may be covered by a concept known as the "discovery rule." See S.C. Code ? 15-3-545; Wilson v. Shannon, 299 S.C. 512, 386 S.E.2d 257 (Ct. App. 1989).
Statute of Limitations (Part 2)
The statutes of limitations are different for negligence suits against a South Carolina state government agency pursuant to the South Carolina Tort Claims Act ("TCA") and the federal government pursuant to the Federal Tort Claims Act ("FTCA"). Under the TCA, a suit must generally be filed within two years, unless a verified claim is filed within a year of the injury, then the statute of limitations is three years. S.C. Code ? 15-78-110. Under the FTCA, an administrative tort claim must generally be presented to the subject federal agency within two years. Once a timely administrative tort claim has been filed, there is no statute of limitations on bringing a suit unless the federal agency denies the claim, in which case a suit must be brought in federal court within six months after the denial. 28 U.S.C. ? ? 1346(b), 1402, 2401, 2675.
South Carolina Code ? 15-79-125
South Carolina Code ? 15-79-125 requires, on medical malpractice cases arising on or after July 1, 2005, that before a medical malpractice suit can be filed, a plaintiff has to simultaneously file both a notice of intent to file suit and an affidavit of an expert witness subject to the affidavit requirements established in ? 15-36-100 in a county in which venue would be proper for filing or initiating the action. Statutory mediation of any such medical malpractice case is required as well, and, there are time limits for filing suit should the attempted mediation fail. (C) Joseph P. Griffith, Jr. 2010