South Carolina Medical Malpractice Nonecomonomic Limitations

H. 3339

A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 32 TO TITLE 15 SO AS TO ESTABLISH A CAP ON THE AWARD FOR NONECONOMIC COMPENSATORY DAMAGES IN MEDICAL MALPRACTICE ACTIONS, TO AUTHORIZE THE PERIODIC PAYMENT OF FUTURE DAMAGES IN LIEU OF A LUMP-SUM PAYMENT, AND TO ESTABLISH MAXIMUM LIMITS FOR ATTORNEY'S FEES THAT ARE TO BE PAID ON A CONTINGENCY FEE.

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

SECTION 1. Title 15 of the 1976 Code is amended by adding:

"CHAPTER 32

Noneconomic Damages in Medical Malpractice Actions
Section 15-32-10. (A) In a medical malpractice action against a health care provider, the plaintiff is entitled to recover noneconomic damages. The amount of noneconomic damages must not exceed two hundred fifty thousand dollars per plaintiff.

(B) As used in this section, 'noneconomic damages' means damages to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary, compensatory damage. 'Noneconomic damages' does not include punitive damages. (See South Carolina Directory of Attorney Resources)

Section 15-32-20. (A) In any medical malpractice action against a health care provider, the court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment when the award equals or exceeds fifty thousand dollars in future damages. In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments that will compensate the judgment creditor for future damages. As a condition to authorizing periodic payments of future damages, the court shall require the judgment debtor who is not adequately insured to post security adequate to ensure full payment of damages awarded by the judgment. Upon termination of periodic payments of future damages, the court shall order the return of any remaining security to the judgment debtor.

(B) The judgment ordering the payment of future damages by periodic payments shall specify the recipient of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments must be made. The judgment ordering the payment of future damages by periodic payments is subject to modification only in the event of the death of the judgment creditor.

(C) In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make the payments, as specified in Subsection (B), the court shall find the judgment debtor in contempt of court and, in addition to the required periodic payments, shall order the judgment debtor to pay the judgment creditor all damages caused by the failure to make the periodic payments, including court costs and attorney's fees.

(D) Money damages awarded for loss of future earnings must not be reduced or payments terminated by reason of the death of the judgment creditor, but must be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to the judgment creditor's death. The court that rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subsection.

(E) Following the occurrence or expiration of all obligations specified in the judgment ordering the payment of future damages by periodic payments, any obligation of the judgment debtor to make further payments ceases, and any security given under subsection (A).

(F) As used in this section:

(1) 'Future damages' includes compensatory damages for future medical treatment, care, or custody; loss of future earnings; loss of bodily function in the future; or future pain and suffering of the judgment creditor.

(2) 'Periodic payments' means the payment of money or delivery of other property to the judgment creditor at regular intervals.

Section 15-32-30. (A) An attorney must not contract for or collect a contingency fee for representing any person seeking damages in connection with a medical malpractice action against a health care provider in excess of the following limits:

(1) Forty percent of the first fifty thousand dollars recovered;

(2) Thirty-three and one-third percent of the next fifty thousand dollars recovered;

(3) Twenty-five percent of the next five hundred thousand dollars recovered;

(4) Fifteen percent of any amount for which the recovery exceeds six hundred thousand dollars.

(B) The limits under subsection (A) section apply regardless of whether the recovery is by settlement, arbitration, or judgment, or whether the person for whom the recovery is made is a responsible adult, an infant, or a person of unsound mind.

(C) As used in this section, 'amount recovered' means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. Amount recovered includes any punitive damages awarded. Costs of medical care incurred by the plaintiff and the attorney's office-overhead costs or charges are not deductible disbursements or costs for purposes of this section."

SECTION 2. This act takes effect January 1, 2006, and applies to judgments in medical malpractice actions that are entered after December 31, 2005, and applies to contingency fee contracts in medical malpractice actions that entered into after December 31, 2005.

For more information on South Carolina Medical Malpractice go to www.http://www.scstatehouse.net