SC Supreme Court Addresses Affidavit Requirement for Medical Malpractice Case
On February 28, 2018, the South Carolina Supreme Court issued its opinion in Eades v. Palmetto Cardiovascular and Thoracics, P.A., et al, Opinion No. 27770. In the opinion, the Court addresses whether an affidavit filed with a Notice of Intent to File Suit (“NOI”) in a medical malpractice case satisfied the statutory requirements of South Carolina Code section 15-36-100(A)(3) with regard to the purported expert’s qualifications.
The case involved a man who sought medical treatment in July/August 2009. Three years later, the man and his wife filed an NOI to bring a medical malpractice action against various treaters. South Carolina requires the filing of an NOI as a prerequisite to filing a medical malpractice action, as set forth in South Carolina Code section 15-79-125. The statute requires that the plaintiff also file an affidavit of an expert witness contemporaneously with the NOI, and the affidavit must comply with the requirements set forth in South Carolina Code section 15-36-100. In Eades, the plaintiffs filed their expert witness affidavit two days after filing the NOI (i.e., not contemporaneously).
All defendants moved to dismiss the NOI, and the circuit court granted the defendants’ motions on two grounds: (1) section 15-79-125 requires medical malpractice plaintiffs to file expert affidavits contemporaneously with the NOI; and (2) the plaintiffs’ expert affidavit was defective because it did not conform to section 15-36-100(A)’s requirements. With regard to the latter ground for dismissal, the circuit court found the expert affidavit did not indicate the expert had “actual professional knowledge and experience” in the same practice area as two of the treating doctors, as set forth as a requirement in section 15-36-100(A)(2)(b).
The Court of Appeals reversed the trial court’s decision regarding the lack of contemporaneous filing based on the South Carolina Supreme Court’s decision in Ranucci v. Crain, 409 S.C. 493, 763 S.E.2d 189 (2014). Ranucci held section 15-36-100(C)(1) extends the time period for filing the affidavit in a medical malpractice case if the statute of limitations is in danger of expiring. The Court of Appeals held the sufficiency of the expert affidavit was not preserved and declined to address the issue.
The South Carolina Supreme Court granted certiorari to review whether the Court of Appeals erred in failing to affirm dismissal because the expert affidavit did not comply with section 15-36-100. The Court found the issue of whether the expert affidavit complied with section 15-36-100(A) was preserved, but it disagreed the affidavit was defective. The Court reviewed the statutory definition of an expert set forth in section 15-36-100(A). The Court then addressed the Petitioner’s argument that the expert’s affidavit was insufficient because it did not demonstrate the expert had “actual professional knowledge and experience” in the same practice areas as the defendant doctors. The purported expert was a vascular and critical care surgeon, whereas the defendant doctors’ areas of specialty were emergency medicine and primary care. “Thus, the crux of the Petitioners’ argument hinges on the interpretation of ‘area of practice or specialty’ as contained in section 15-36-100(A)(2)(a) & (b).”
The Court essentially avoided this question in its opinion by relying instead on section 15-36-100(A)(3) to address the issue. “Subsection (A)(3) provides that an individual who is not otherwise qualified under subsections (A)(1) or (2) may still qualify as an expert if he has ‘scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual’s study, experience, or both.’” The Court held this subsection contemplated production of an expert affidavit from a doctor who may not be certified or does not practice in the same area of medicine as the defendant doctors, but otherwise possesses specialized knowledge to assist the trier of fact. The affidavit contained information sufficient to meet this requirement because it listed the expert’s education, training, and experience, and it provided an explanation about his knowledge of issues similar to those for which the plaintiff sought treatment. Therefore, the Court held that even if the affidavit failed to satisfy the requirements of section 15-36-100(A)(2), it satisfied the broader requirements of subsection A(3).
The opinion is favorable for parties bringing professional malpractice claims because it suggests a purported expert may be able to render an opinion about an area of expertise in which s/he may not practice on a day to day basis. It effectively relaxes the general qualifications that may be required of an expert. Section 15-36-100(A)(3) allows a defendant to challenge the sufficiency of an expert’s credential pursuant to section 15-36-100(E), but the challenge must be made contemporaneously via a motion to dismiss filed with the defendant’s responsive pleading.