HISTORY OF MEDICAL MALPRACTICE IN SOUTH CAROLINA SHELTON W. HAILE, ESQ. ERIC C. POSTON, ESQ.
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ORIGIN OF MEDMAL LAWSUITS IN AMERICA Uncommon before 1825 Unacceptable response to personal misfortune Patients and families rarely won in court Extra-judicial methods were often pursued 3
EARLIEST REPORTED MEDMAL CASE Cross V. Guthery (1794) Dr. Cross, a Connecticut doctor, amputated one of Mrs. Guthery s breasts and she died 3 hours later Mr. Guthery sued for 1,000 for costs and expenses and deprivation of the service and company of his wife Jury awarded 40 in damages 4
EARLY MEDMAL CASES IN SOUTH CAROLINA Thomas v. Register (1918) Plaintiff alleged Defendant was negligent in the injection treatment he prescribed for hemorrhoids, notwithstanding the pain incurred by the plaintiff The SC Supreme Court held that negligence is not a reasonable inference from the bare fact that pain accompanied the treatment The Court entered a nonsuit for Defendant 5
MEDMAL EVOLUTION: AMERICA IN THE 1960s New and more complex treatments with higher risks Changing legal landscape Changing perception of the healthcare system 6
SC TORT CLAIMS ACT: HISTORY Young v. Commissioners of the Roads (1820) Governmental immunity in tort upheld for 165 years 7
SC TORT CLAIMS ACT: BREAKING POINT McCall v. Batson (1985) The SC Supreme Court evaluated allegations of negligence and intentional infliction of emotional distress by a child against the Greenville County School District The Court found sovereign immunity no longer tenable In response to McCall, the SC General Assembly, on June 3, 1986, amended Title 15 of the 1976 Code by enacting the SC Tort Claims Act 8
SC TORT CLAIMS ACT: WHY ENACTED? While a private entrepreneur was liable for the negligence of his employees, government did not have the duty to do everything which might have been done Competing interests of either providing physicians and dentists qualified immunity or continuing unqualified liability 9
SC TORT CLAIMS ACT: IN GENERAL Does not create causes of action, rather it removes the common law bar of sovereign immunity Waives immunity of the State and its agencies, political subdivisions, and governmental entities from liability in tort by making them liable for their torts in the same manner as private individuals under like circumstances Subject to certain limitations upon liability and damages contained in the TCA 10
SC TORT CLAIMS ACT: MEDMAL As originally enacted, the TCA did not limit the unqualified liability of government employed physicians In 1986, the SC General Assembly amended the TCA, extending its provisions to government employed physicians Employees acting within the scope of their employment are immune to liability unless their alleged conduct constitutes fraud or malice 11
SC TORT CLAIMS ACT: MEDMAL TCA liability limits $300k for a loss arising from a single occurrence $600k total for a loss arising from a single occurrence, regardless of number of claims/actions MedMal exceptions $1.2M if claim is against any licensed physician or dentist $1.2M if claim(s) are against any licensed physician or dentist 12
SC TORT CLAIMS ACT: IN ACTION Proveaux v. MUSC (1997) Plaintiff injured her back when she fell 20 feet from a deer stand while hunting She had emergency surgery at MUSC Is a physician at MUSC, individually named in the suit, immune under the TCA? The SC Supreme Court held he was entitled to governmental immunity as he was a government employee acting within the scope of his official duty while he committed the tort 13
THE SOLICITATION OF CHARITABLE FUNDS ACT: HISTORY Common-law doctrine of charitable immunity Based on the view that the public indirectly benefited from the benefit of charities By the mid 20 th century, however, charitable institutions had taken on the trappings of big business and public perceptions changed 14
THE SOLICITATION OF CHARITABLE FUNDS ACT: JUDICIAL PRECURSORS Brown v. Anderson County Hospital Association (1977) The SC Supreme Court modified the immunity of charitable hospitals Fitzer v. Greater Greenville South Carolina YMCA (1981) The SC Supreme Court abolished altogether what it referred to as an archaic doctrine Statutory damage caps for charitable organizations 15
THE SOLICITATION OF CHARITABLE FUNDS ACT: LIMITATION OF LIABILITY In an action brought against a charitable organization for the tortious act of an employee (physician, nurse, etc.), plaintiff may only recover the actual damages he sustains in an amount not exceeding the limitations imposed by the SC Tort Claims Act An action against an individual employee must be based on allegations of recklessness, willful or gross negligence, and the employee must be joined properly as a party defendant 16
THE SOLICITATION OF CHARITABLE FUNDS ACT: IN ACTION Chastain v. AnMed Health Foundation (2010) Plaintiff brought suit against AnMed, a charitable institution, after developing a Stage IV pressure sore in the wake of a left leg amputation procedure The SC Supreme Court looked to the TCA in reducing the $1.54M verdict to $300k The judge reasoned that the intent of the term occurrence was clearly not to include every incident where the defendant nurses violated the applicable standard of care 17
THE TCA OCCURRENCE ISSUE: MEDMAL Per the TCA, liability caps are per occurrence, thus incentivizing plaintiffs to seek maximum damages by alleging multiple occurrences whenever possible Williamson v. S.C. Insurance Reserve Fund (2003) The SC Supreme Court found multiple occurrences when two physicians employed by Spartanburg County Health Services District each negligently examined Plaintiff during childbirth and failed to take the necessary steps during delivery to prevent harm to the child 18
THE TCA OCCURRENCE ISSUE: FLESHED OUT Boiter v. South Carolina Dept. of Transp. (2011) The SC Supreme Court faced this issue in motor vehicle accident litigation, and provided some additional clarity as to what defines an occurrence In this case, the Court found there were two independent and separate acts of negligence and thus there were two occurrences The Court found no indication that Respondent s actions combined to form a single act of negligence The Court held that it cannot see how SCDOT s negligent act unfolded into SCDPS negligent act Furthermore, the Court found no causal connection between the actions of SCDOT and SCDPS 19
THE CHARITABLE ORGANIZATION ISSUE 20
NON-DELEGABLE DUTY OF HOSPITALS Simmons v. Tuomey Regional Medical Center (1998) The SC Supreme Court applied the non-delegable duty doctrine to hospitals (specifically, emergency departments) The term non-delegable duty in this context means that a hospital may not delegate liability for certain responsibilities to another party The plaintiff must show: o (1) the hospital held itself out to the public by offering to provide services o (2) the plaintiff looked to the hospital, rather than the individual physician, for care, and o (3) a person in similar circumstances reasonably would have believed that the physician who treated him or her was a hospital employee The Court stated that public policy requires hospitals to have such liability 21
AGGRESSIVE MARKETING 22
NON-DELEGABLE DUTY OF HOSPITALS: TCA GOVERNMENT EXCEPTION Smith v. Regional Medical Center of Orangeburg and Calhoun (2011) A government hospital was sued after a child sustained brain damage when an independently contracted physician allegedly misplaced an endotracheal tube The SC Court of Appeals drew a clear distinction between this case and Simmons, as Simmons involved a private hospital and Smith involved a governmentally funded hospital The Court held that the TCA codified qualified and limited liability and shielded political subdivisions like the hospital from liability for certain acts and omissions 23
SC TORT REFORM ACT OF 2005 Plaintiffs in medical malpractice actions are no longer allowed, in most cases, to pursue noneconomic damages, such as pain and suffering, over $350k for each claimant The limit of non-economic liability for all healthcare institutions and healthcare providers, in most cases, is not to exceed $1.05M for each claimant To encourage resolution of medical malpractice disputes without extended litigation, the Act requires plaintiffs suing doctors and/or nurses to file a Notice of Intent to File Suit, along with an expert affidavit specifying at least one act of negligence 24
DEFINITION OF CLAIMANT Boyle v. US (2012) Wilson v. Amisub of South Carolina, Inc., et al. (2009) 25
SC TORT REFORM ACT: IMPACT 26
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SC TORT REFORM: THE FUTURE On February 14, 2017, the SC House introduced a bill that is currently residing in the House Committee on Judiciary The bill is to amend 15-79-125(C) to read: o Within 90 days and no later than 120 days from the service of the Notice of Intent to File Suit, the parties shall participate in a mediation conference unless an extension for no more than 60 days is granted by the court based upon a finding of good cause. Within 30 days of being served with the Notice of Intent to File Suit, the defendant shall file and serve a Notice of Appearance. If the defendant fails to file and serve a Notice of Appearance within this time frame, and that fact is made to appear by affidavit or otherwise, the clerk of court shall enter his nonappearance upon the calendar (file book). Upon the clerk's entry of nonappearance, the plaintiff may dispense with the pre-suit mediation requirements as provided in this section and proceed with initiating a civil action by filing a summons and complaint pursuant to the South Carolina Rules of Civil Procedure. The bill was tabled for the year on March 22, 2017 28
SC TORT REFORM: THE FUTURE Ross v. Waccamaw Community Hosp. (2013) The SC Supreme Court took steps to undercut the importance of the mandated 90-120 day pre-suit mediation following the filing of the Notice of Intent to File Suit The Court stated that, given the pressures of practicing law, completion of the mediation conference in a timely manner will not always be achievable The Court reasoned that the 120-day time limit demonstrated the Legislature s desire that pre-suit mediation take place expeditiously, and that failure to comply could result in dismissal, but that dismissal was not a mandated one-size-fits-all result 29
PHYSICIAN LIABILITY FOR BREACH OF CONFIDENTIALITY IN SC South Carolina State Board of Medical Examiners v. Hedgepath (1997) The SC Supreme Court held that physicians have a duty to maintain the confidentiality of doctor-patient communications Violated by revealing patient confidences when the revelation was neither compelled by law (i.e. subpoena or statute) nor consented to by the patient McCormick v. England (1997) The SC Court of Appeals took the next step and recognized a cause of action in tort for breach of this duty Under certain circumstances, a physician might be required to reveal confidences when public interest dictates disclosure Even though the breach of confidentiality tort exists, the right is not absolute and must give way when disclosure is compelled by law or is in the best interest of the patient or others 30
DAMAGE CAPS: OVERVIEW Average cap per state: $626,650 States with no damages caps: 16 Lowest damages cap: $250,000 Highest damages cap: $2.25M 6 states utilize an umbrella cap that applies to the total amount of compensation (economic and non-economic) that an injured plaintiff can recover o o Virginia: $2.2M Indiana: $1.25M o Colorado: $1M o New Mexico: $600k o Louisiana: $500k o Maine: $500k Over half of all states have laws limiting the amount of damages a plaintiff can expect to recover. These caps impact not only medical malpractice litigation, but also the administration of state healthcare Affects where physicians choose to practice, the method in which physicians treat their patients, and state healthcare costs 31
DAMAGE CAPS: UNCONSTITUTIONAL? Estate of McCall v. United States (2014) The Florida Supreme Court held that the cap on wrongful death non-economic damages violates the equal protection clause of the Florida Constitution North Broward Hospital v. Kalitan (2015) The Florida Court of Appeals (Fourth District) extended the McCall ruling by recognizing that damage caps are also unconstitutional in personal injury medical malpractice actions Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt (2010) The Georgia Supreme Court similarly held that a state statute limiting awards of non-economic damages in medical malpractice cases to a predetermined amount violated the state constitutional right to jury trial 32
DAMAGE CAPS IN THE USA 33
UNIQUE NON-ECONOMIC CAPS BASED ON INJURY Alaska o Non-economic damages cap of $250k rises to $400k in any case involving wrongful death, or cases where the plaintiff has suffered severe, permanent injuries that are more than 70% debilitating Tennessee o Non-economic damages cap of $750k increases to $1M if the injuries involved are truly catastrophic (can include paralysis, amputation of multiple limbs, or wrongful death) Michigan o Non-economic damages cap of $280k increases to $500k for a range of circumstances, such as total permanent loss of limb due to neurological injury, permanent cognitive impairment, or permanent damage to a reproductive organ North Carolina o Non-economic damages cap of $500k is removed altogether if the plaintiff suffers disfigurement or permanent injury, and if the defendant s malpractice was caused by malice, an intentional act, or gross negligence Massachusetts o Non-economic cap of $500k is removed altogether if the plaintiff s injuries cause him or her permanent loss of a bodily function, substantial physical disfigurement, or other particularly debilitating injuries 34
RECENT REFORMS IN THE USA In 2011, the National Conference of State Legislatures compiled an analysis of medical malpractice reform goals and initiatives seeking to address cost containment through 3 major avenues: o o o Limiting the costs associated with medical malpractice Deterring medical errors Ensuring fair compensation for patients who are harmed Reforms have typically attempted to change the medical malpractice climate in one of three ways: o o o Allowing fewer lawsuits by creating barriers to filing Limiting plaintiff s compensation by imposing damage caps for noneconomic damages such as pain and suffering, or Changing how awards are paid out to plaintiffs (payments over time versus lump-sum settlements) 35
DAMAGE CAPS IMPACTS: A CASE STUDY The Impact of the 2003 Texas Medical Malpractice Damages Cap on Physician Supply and Insurer Payouts: Separating Facts from Rhetoric, Texas Advocate, 2008 The non-economic damages cap affected 47% of verdicts favoring plaintiffs and reduced average allowed non-economic damages by 73% and average total payout by 27% The non-economic damages cap affected 18% of cases settled without trial and reduced predicted average total payout by 18% 36
REFORM IMPACTS? A CASE STUDY 37
REFORM IMPACTS? A CASE STUDY 38
GEORGIA MAN S DEATH DURING THREESOME NETS HIS FAMILY $3M IN TRIAL 39
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