South Carolina Medical Malpractice Legislation

S. 115

A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ENACTING THE "MEDICAL NEGLIGENCE FAIRNESS ACT OF 2005"; BY ADDING ARTICLE 1, CHAPTER 32 TO TITLE 15 SO AS TO PROVIDE FOR LIMITATIONS ON NONECONOMIC DAMAGES IN A MEDICAL MALPRACTICE ACTION AND TO DEFINE THE TERMS "HEALTH CARE PROVIDER", "HEALTH CARE INSTITUTION", AND "MEDICAL MALPRACTICE";

BY ADDING SECTION 15-35-400 TO PROVIDE FOR PROCEDURES BY WHICH A PARTY MAY MAKE AN OFFER OF JUDGMENT IN A DOMESTIC OR CIVIL ACTION AND TO PROVIDE FOR CONSEQUENCES OF NON-ACCEPTANCE; BY ADDING SECTION 15-36-100 SO AS TO ESTABLISH THE REQUIREMENT FOR AN AFFIDAVIT OF AN EXPERT WITNESS IN A PROFESSIONAL MALPRACTICE ACTION; BY ADDING SECTION 15-80-510 SO AS TO REQUIRE THE PARTIES TO A MEDICAL MALPRACTICE ACTION TO PARTICIPATE IN MEDIATION BEFORE THE ACTION IS BROUGHT TO TRIAL; BY ADDING SECTION 38-79-40 SO AS TO PROHIBIT A PERSON WHO SERVES ON THE BOARD OF THE JOINT UNDERWRITING ASSOCIATION OR THE BOARD OF GOVERNORS OF THE PATIENTS' COMPENSATION FUND FROM BEING EMPLOYED BY THE JOINT UNDERWRITING ASSOCIATION OR PATIENTS' COMPENSATION FUND; TO AMEND SECTION 38-79-460, RELATING TO THE PATIENTS' COMPENSATION FUND, SO AS TO DELETE THE REQUIREMENT THAT THE FUND BE HELD IN TRUST AND PROVIDE IT IS TO BE MANAGED BY THE BOARD ACCORDING TO ITS PLAN OF OPERATION; TO AMEND SECTION 38-79-470 RELATING TO THE PATIENTS' COMPENSATION FUND, SO AS TO DELETE THE REQUIREMENT THAT MONIES FROM THE FUND CAN ONLY BE WITHDRAWN UPON WRITTEN WARRANTS OF THE COMPTROLLER GENERAL; AND TO AMEND SECTION 40-47-211, AS AMENDED, RELATING TO THE MEDICAL DISCIPLINARY COMMISSION, SO AS TO INCREASE THE MEMBERSHIP FROM THIRTY-SIX TO FORTY-TWO MEMBERS AND CHANGE THE MAKEUP OF THE COMMISSION.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. This act may be cited as the "Medical Negligence Fairness Act of 2005".

SECTION 2. Title 15 of the 1976 Code is amended by adding:

"CHAPTER 32

Damages and Liability

Article 1

Noneconomic Damages
Section 15-32-10. As used in this chapter:

(1) 'health care provider' means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity; (See South Carolina Directory of Lawyer Resources)

(2) 'health care institution' means a hospital, nursing home, or similar category of licensed health care organization not included in the definition of 'health care provider'; and

(3) 'medical malpractice' means doing that which the reasonably prudent health care provider or health care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances.

Section 15-32-20. (A) In an action on a medical malpractice claim when final judgment is rendered against a health care provider other than a health care institution, the limit of civil liability for noneconomic damages of the health care provider, inclusive of all persons and entities for which vicarious liability theories may apply, is limited to an amount not to exceed two hundred fifty thousand dollars for each claimant, regardless of the number or defendant health care providers other than a health care institution against whom the claim is asserted or the number of separate causes of action on which the claim is based.

(B) In an action on a medical malpractice claim when final judgment is rendered against a single health care institution, the limit of civil liability for noneconomic damages, inclusive of all persons and entities for which vicarious liability theories may apply, is limited to an amount not to exceed two hundred fifty thousand dollars for each claimant.

(C) In an action on a medical malpractice claim when final judgment is rendered against more than one health care institution, the limit of civil liability for noneconomic damages for each health care institution, inclusive of all persons and entities for which vicarious liability theories may apply, is limited to an amount not to exceed two hundred fifty thousand dollars for each claimant and the limit of civil liability for noneconomic damages for all health care institutions, inclusive of all persons and entities for which vicarious liability theories may apply, is limited to an amount not to exceed five hundred thousand dollars."

SECTION 3. Title 15, Chapter 35 of the 1976 Code is amended by adding:

"Section 15-35-400. (A) Except in domestic relations actions, after commencement of a civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, a party may, at any time more than twenty days before the actual trial date, file with the clerk of the court a written offer of judgment signed by the offeror or his attorney, directed to the opposing party, offering to take judgment in the offeror's favor, or as the case may be, to allow judgment to be taken against the offeror, for a sum stated therein, for property, or to the effect specified in the offer. The offeror shall give notice of the offer of judgment to the offeree's attorney, or if the offeree is not represented by an attorney, to the offeree himself, in accordance with the service rules for motions and other pleadings set forth in the South Carolina Rules of Civil Procedure. Within twenty days after notification, or at least ten days prior to the trial date, whichever date is earlier, the offeree or his attorney may file with the clerk of the court a written acceptance of the offer of judgment. Upon the filing, the clerk shall enter immediately judgment of the stipulation. If the offer of judgment is not accepted within twenty days after notification or prior to or on the tenth day before the actual trial date, whichever date occurs first, the offer is considered rejected and evidence thereof is not admissible except in a proceeding after the trial to fix costs, interests, attorneys' fees, and other recoverable monies. An offeror may withdraw an offer of judgment prior to its acceptance or prior to the date on which it would be considered rejected by giving notice to the offeree or his attorney in accordance with the service rules for motions and other pleadings outlined in the South Carolina Rules of Civil Procedure. An offeror may file a subsequent offer of judgment in any amount provided that the subsequent offer supercedes any earlier offer that was rejected by the offeree or withdrawn by the offeror, and, on filing, terminates any rights of interest or costs that may have been applicable to the superceded offer. Notwithstanding this provision, an offer is not considered rejected upon the making of a counteroffer by the offeree, but remains effective until accepted, rejected, or withdrawn as provided in this subsection. Any and all offers of judgment and any acceptance of offers of judgment must be included by the clerk in the record of the case.

(B) If an offer of judgment is not accepted and the offeror obtains a verdict or determination at least as favorable as the rejected offer, the offeror is allowed to recover from the offeree:

(1) administrative, filing, or other court costs from the date of the offer until judgment;

(2) if the offeror is a plaintiff, eight percent interest computed on the amount of the verdict or award from the date of the offer; or

(3) if the offeror is a defendant, a reduction from the judgment or award of eight percent interest computed on the amount of the verdict or award from the date of the offer.

(C) The provisions of this section do not abrogate the contractual rights of a party concerning the recovery of attorneys' fees or other monies in accordance with the provisions of a written contract between the parties to the action."

SECTION 4. Chapter 36, Title 15 of the 1976 Code is amended by adding:

"Section 15-36-100. (A) As used in this section, 'expert witness' means an expert who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who:

(1) is licensed by an appropriate regulatory agency to practice his profession in the location in which the expert practices or teaches; and

(2)(a) is board certified by a national or international association or academy which administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or

(b) has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:

(i) the active practice of the area of specialty of his profession for at least three of the last five years immediately preceding the opinion;

(ii) the teaching of the area of practice or specialty of his profession for at least half of his professional time as an employed member of the faculty of an educational institution which is accredited in the teaching of his profession for at least three of the last five years immediately preceding the opinion; or

(iii) a combination of the active practice or the teaching of his profession in a manner which meets the requirements of subitems (i) and (ii) for at least three of the last five years immediately preceding the opinion.

(3) is an individual not covered by subsections (A)(1) or (2), that 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. However, an affidavit filed pursuant to subsection (B) by an expert qualified under this subsection must contain an explanation of the expert's credentials and why the expert is qualified to conduct the review required by subsection (B). The defendant is entitled to challenge the sufficiency of the expert's credentials pursuant to subsection (E).

(B) In an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care institution alleged to be liable based upon the action or inaction of a health care provider licensed by the State of South Carolina and listed in subsection (G), the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.

(C)(1) The contemporaneous filing requirement of subsection (B) does not apply to any case in which the period of limitation will expire, or there is a good faith basis to believe it will expire on a claim stated in the complaint, within ten days of the date of filing and, because of the time constraints, the plaintiff alleges that an affidavit of an expert could not be prepared. In such a case, the plaintiff has forty-five days after the filing of the complaint to supplement the pleadings with the affidavit. Upon motion, the trial court, after hearing and for good cause, may extend the time as the court determines justice requires. If an affidavit is not filed within the period specified in this subsection or as extended by the trial court and the defendant against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim. The filing of a motion to dismiss, pursuant to this section, shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.

(2) The contemporaneous filing requirement of subsection (B) is not required to support a pleaded specification of negligence involving subject matter that lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.

(D) This section does not extend an applicable period of limitation, except that if the affidavit is filed within the period specified in this section, the filing of the affidavit after the expiration of the statute of limitations is considered timely and provides no basis for a statute of limitations defense.

(E) If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed contemporaneously with its initial responsive pleading, that the affidavit is defective, the plaintiff's complaint is subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment within thirty days of service of the motion alleging that the affidavit is defective. The trial court may, in the exercise of its discretion, extend the time for filing an amendment or response to the motion, or both, as the trial court determines justice requires. The filing of a motion to dismiss pursuant to this section alters the period for filing an answer to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.

(F) If a plaintiff fails to file an affidavit as required by this section, and the defendant raises the failure to file an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, the complaint is not subject to renewal after the expiration of the applicable period of limitation unless a court determines that the plaintiff had the requisite affidavit within the time required pursuant to this section and the failure to file the affidavit is the result of a mistake. The filing of a motion to dismiss pursuant to this section alters the period for filing an answer to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.

(G) This section applies to the following professions:

( 1) architects;

( 2) attorneys at law;

( 3) certified public accountants;

( 4) chiropractors;

( 5) dentists;

( 6) land surveyors;

( 7) medical doctors;

( 8) marriage and family therapists;

( 9) nurses;

(10) occupational therapists;

(11) optometrists;

(12) osteopathic physicians;

(13) pharmacists;

(14) physical therapists;

(15) physicians' assistants;

(16) professional counselors;

(17) professional engineers;

(18) podiatrists;

(19) psychologists;

(20) radiological technicians;

(21) respiratory therapists; and

(22) veterinarians."

SECTION 5. Chapter 80, Title 15 of the 1976 Code is amended by adding:

"Section 15-80-510. (A) As used in this section, 'medical malpractice' means doing that which the reasonably prudent health care provider would not do or not doing that which the reasonably prudent health care provider would do under the same or similar circumstances.

(B) At any time before a medical malpractice action is tried, the parties shall participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules in effect at the time for the State or any portion of the State. Parties may also agree to participate in binding arbitration.

Section 15-80-610. (A) As used in this section:

(1) 'health care provider' means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity;

(2) 'health care institution' means a hospital, nursing home, or similar category of licensed health care organization not included in the definition of 'health care provider'; and

(3) 'medical malpractice' means doing that which the reasonably prudent health care provider or health care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances.

(B) If a judge finds that an expert health care provider or health care institution in a medical malpractice action in this State has offered testimony or evidence in bad faith in connection with testifying as an expert in deposition or at trial, the judge must report the expert to the state entity that licenses and regulates the profession of the expert or the type of health care entity represented by the expert."

SECTION 6. Article 1, Chapter 79, Title 38 is amended by adding:

"Section 38-79-40. A person who serves on the Board of the Joint Underwriting Association or the Board of Governors of the Patients' Compensation Fund is prohibited from being employed in any manner or compensated by the Joint Underwriting Association or the Patients' Compensation Fund, and this prohibition continues for one year after the person ceases to be a member of the board.

No provision of this section may be construed to prohibit an insurance agent from selling insurance products to the association."

SECTION 7. Section 38-79-460 of the 1976 Code is amended to read:

"Section 38-79-460. The fund, and any income from it, must be held in trust, deposited in the office of the State Treasurer and kept in a segregated account entitled "Patients' Compensation Fund", invested and reinvested by the State Treasurer in the same manner as provided by law for the investment of other state funds in interest-bearing investments and may not become a part of the general fund of the State. All expenses of collecting, protecting, and administering the Fund must be paid from the Fund managed by the board according to its plan of operation developed pursuant to Section 38-79-430."

SECTION 8. Section 38-79-470(1) of the 1976 Code is amended to read:

"(1) Monies may be withdrawn from the fund only upon the signature of the chairman of the Board of Governors or his designee upon written warrants of the Comptroller General, drawn on the State Treasurer to the payee designated in the requisition."

SECTION 9. Section 40-47-211, as amended by Act 58 of 1999, is further amended to read:

"Section 40-47-211. (A) There is created the Medical Disciplinary Commission of the State Board of Medical Examiners to be composed of thirty-six forty-two members. The Of these, thirty-six members of the commission must be licensed physicians practicing their profession,. and Five physician commissioners must be elected from each of the six congressional districts, and six physician members of the commission must be elected at large from across the State. The board shall conduct the elections, and the elections for the physician members shall provide for participation by any physician currently licensed and actively practicing medicine in South Carolina and residing in the congressional district in which the election is held. At-large physician members must be currently licensed and actively practicing medicine in South Carolina and must reside within the State at the time of election and throughout their term terms. One physician commissioner initially elected from each district shall serve for a term of one year and until his successor is elected and qualifies, one physician commissioner initially elected from each district shall serve for a term of two years and until his successor is elected and qualifies, and one physician commissioner initially elected from each district shall serve for a term of three years and until his successor is elected and qualifies. The successors of the initial physician commissioners shall serve for terms of three years or until their successors are elected and qualify. The members of the commission are limited to three terms. The members appointed to the board may not simultaneously serve as a commissioner. In case of a vacancy by way of death, resignation, or otherwise, the board shall appoint a successor to serve for the unexpired term. Where justice, fairness, or other circumstances so require, the board may appoint past commissioners to hear complaints in individual cases.

(B) Six members of the commission must be lay commissioners who each must have, at a minimum, a baccalaureate degree or the equivalent, and have no ascertainable ties to the health care industry. The lay commissioners must be appointed by the Governor from each of the six congressional districts, with the advice and consent of the Senate. Each lay commissioner must be a registered voter and reside in the congressional district he represents throughout his term. Each lay commissioner initially elected from each district shall serve for a term of three years and until his successor is elected and qualifies. The lay commissioners are limited to three consecutive terms.

(C) The commission is empowered to investigate and hear those complaints against physicians (medical and osteopathic) filed with the board pursuant to Section 40-47-200. The hearing must be conducted in accordance with Act 176 of 1977 (Administrative Procedures Act) and with regulations promulgated by the board and must be before a panel composed of at least three commissioners designated by the board, and one of those three commissioners must be a lay member. The panel is empowered to hear the matters complained of and to make findings of fact and recommendations as to disposition of those matters to the board. The panel shall make a certified report of the proceedings before it, including its findings of fact, conclusions, and recommendations, which must be filed together with a transcript of the testimony taken and exhibits as may have been in evidence before it with the administrator of the board, and a copy of the report must be delivered to the office of general counsel and the licensee or his counsel."

SECTION 10. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION 11. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION 12. This act takes effect upon approval by the Governor.

For more information go to www.http://www.scstatehouse.net