South Carolina Medical Malpractice Attorney
You have the fundamental right to protect your health!
Medical Negligence, also referred to as Medical Malpractice, is an important area of emphasis at Law Office of Daryl G. Hawkins, LLC. In its seminal 1998 report “To Err is Human”, the Institute of Medicine reported that an approximated 98,000 people a year suffer death due to medical errors in hospitals. Since then, several reports have tried to clarify the actual number of fatalities occurring each year from faulty procedures in medical facilities. According to a recent study conducted by NASA toxicologist John T. James, range from 200,000-400,000. The medical/pharmacological industry, along with their insurance representatives and carriers have the ability to bring about the greatest changes in the law, through legislation and lobbying efforts, of any area in which we practice. Unfortunately, this means that their consumers are subject to complex and often misunderstood regulations that may impede their understanding of their rights to quality healthcare.
Firm News: Our firm appealed and argued the case resulting in recent decision by our Supreme Court related to the South Carolina statute requiring the filing and service of a Notice of Intent to File Suit against a health care provider in many situations and resulting in a simplified process for qualified cases:
Patricia Brouwer v. Sisters of Charity Providence Hospitals, et al, 409 S.C. 514, 763 S.E.2d 2014 (SC Supreme Court)
We at the Law Firm of Daryl Hawkins couldn’t be more proud to be a part of the process to simplify the process of filing of a medical lawsuit in South Carolina. By empowering lay people who recognize obvious errors by professional medial staff, we have helped to level the playing field in medical malpractice suits.
In 2005 the South Carolina legislature enacted several laws that provide special protection to medical and health care providers that other citizens of the state do not generally enjoy. One part of these laws requires a person who has been injured by a type of medical provider identified on a list to be sent a Notice that describes the nature of the injured person’s claims and in many circumstances, requires the injured person to hire an expert witness to describe at least one thing the provider did wrong, before they can file the lawsuit for medical malpractice. This delays pursuit of meritorious cases by a minimum of 6 months and up to a year or more in many cases.
An injured person is required to do these things even before they have a full opportunity to get all of the information that would be important to understanding the claims, or potential claims and thus presents the opportunity for records to suddenly become lost or altered by unscrupulous people and potential defendants.
The list of protected types of providers is included in a broader list in SC Code Section 15-36-100(G) and applies to chiropractors, dentists, medical doctors, certain therapists, nurses, optometrists, osteopathic physicians, physicians assistants, and potentially others. See the Code section for the complete list of persons with special protection.
The statute requiring a Notice to be sent before a medical malpractice lawsuit can be filed is SC Code section 15-79-125. These statutes must be read together to make sense. Defendants claimed that all Plaintiffs in these matters would always be required to hire an expert witness to review the medical records that were available (even when all records are not available to the injured person) and to attach an affidavit of that expert describing an act of wrongdoing to the Notice. Getting these affidavits can be difficult and expensive and in many instances is entirely unnecessary.
The Defense had successfully argued the theory to a state court judge and the SC Court of Appeals, that even if a doctor cut off the wrong leg in an operation, a Plaintiff would still need to go out and hire an expert witness to provide an affidavit to say that was a wrongful act and constituted medical malpractice. We were able to reverse that line of thought in Patricia Brouwer’s case.
Patricia Brouwer, a school teacher and mother, had a latex allergy which she reported to her surgeon and to anesthesiology at the hospital pre-surgery. In addition to reporting her allergy orally and in writing she was wearing a red wristband identifying the allergy. She was having a procedure which would require a tube (called a nasal trumpet) to carry oxygen to her lungs through her nose and a ”mouth gag” to keep her mouth open during the surgery. Despite her many warnings, both devices used were coated in latex and she suffered an allergic reaction requiring hospitalization in the intensive care unit.
The Defense agreed that in a medical malpractice lawsuit, if the negligence complained of was within the ambit of common knowledge of lay people, no expert would be needed at trial, but insisted that only one of the two statutes should be read in the Notice phase, and by reading that statute alone, this doctrine did not apply. In other words, the Plaintiff would need to hire an expert and pay them to provide the affidavit for sending the Notice, even though they would not need the expert months later when they filed the lawsuit, or even years later when the lawsuit made it to trial.
The Defense doggedly claimed an expert witness was needed to prove exposing a person to latex who is allergic to latex is malpractice. Our Supreme Court brought sense to the line of cases and held that the portion of the statute which sought to preserve the common law doctrine that expert witnesses were unnecessary when the alleged negligence could be understood by lay people with out the need for experts, applied to the Notice stage of a proceeding. To read the two statutes otherwise would “create an absurd result.”
Because the SC Court of Appeals had recently rendered a decision holding (for more on the background, See, Ranucci citation in the list of reported opinions involving Daryl Hawkins elsewhere in the website) that the Common Law exception to the need for an expert witness did NOT apply to the Notice of Intent (NOI) statute, and an expert witness affidavit was required in order to file a NOI, had the appeal which was set in the Court of Appeals, been heard in the Court of Appeals, that Court would have been required to follow its own precedent and it would have delayed the resolution of this issue affecting so many South Carolina citizens in medical malpractice claims.
We thank the South Carolina Supreme Court for granting our request to have this case transferred from the SC Court of Appeals so as to allow the decision to be expedited and to allow the decision to be addressed in a fashion that promoted judicial economy.
South Carolina Medical Malpractice Law Firm
What Exactly is Medical Negligence?
Medical Negligence can comprise of any error in diagnosis, treatment, follow-up prescription or administration of medication, and many other facets of negligence. The wrongdoers can include administrators, clerks, medical technicians, nurses, doctors, hospitals, nursing homes, clinics, pharmacies, drug manufacturers and others. If something has gone wrong in any step of your treatment due to the negligence of a health professional, we want to help you make it right. Please do not hesitate to give us a call to see what we can do to help.
Patricia Brouwer v. Sisters of Charity Providence Hospitals, et al, 409 S.C. 514, 763 S.E.2d 200 (SC Supreme Court)
We at the Law Firm of Daryl Hawkins couldn’t be more proud to be a part of the process to simplify the process of filing of a medical lawsuit in South Carolina. By empowering lay people who recognize obvious errors by professional medial staff, we have helped to level the playing field in medical malpractice suits.
In 2005 the South Carolina legislature enacted several laws that provide special protection to medical and health care providers that other citizens of the state do not generally enjoy. One part of these laws requires a person who has been injured by a type of medical provider identified on a list to be sent a Notice that describes the nature of the injured person’s claims and in many circumstances, requires the injured person to hire an expert witness to describe at least one thing the provider did wrong, before they can file the lawsuit for medical malpractice. This delays pursuit of meritorious cases by a minimum of 6 months and up to a year or more in many cases.
An injured person is required to do these things even before they have a full opportunity to get all of the information that would be important to understanding the claims, or potential claims and thus presents the opportunity for records to suddenly become lost or altered by unscrupulous people and potential defendants.
The list of protected types of providers is included in a broader list in SC Code Section 15-36-100(G) and applies to chiropractors, dentists, medical doctors, certain therapists, nurses, optometrists, osteopathic physicians, physicians assistants, and potentially others. See the Code section for the complete list of persons with special protection.
The statute requiring a Notice to be sent before a medical malpractice lawsuit can be filed is SC Code section 15-79-125. These statutes must be read together to make sense. Defendants claimed that all Plaintiffs in these matters would always be required to hire an expert witness to review the medical records that were available (even when all records are not available to the injured person) and to attach an affidavit of that expert describing an act of wrongdoing to the Notice. Getting these affidavits can be difficult and expensive and in many instances is entirely unnecessary.
The Defense had successfully argued the theory to a state court judge and the SC Court of Appeals, that even if a doctor cut off the wrong leg in an operation, a Plaintiff would still need to go out and hire an expert witness to provide an affidavit to say that was a wrongful act and constituted medical malpractice. We were able to reverse that line of thought in Patricia Brouwer’s case.
Patricia Brouwer, a school teacher and mother, had a latex allergy which she reported to her surgeon and to anesthesiology at the hospital pre-surgery. In addition to reporting her allergy orally and in writing she was wearing a red wristband identifying the allergy. She was having a procedure which would require a tube (called a nasal trumpet) to carry oxygen to her lungs through her nose and a”mouth gag” to keep her mouth open during the surgery. Despite her many warnings, both devices used were coated in latex and she suffered an allergic reaction requiring hospitalization in the intensive care unit.
The Defense agreed that in a medical malpractice lawsuit, if the negligence complained of was within the ambit of common knowledge of lay people, no expert would be needed at trial, but insisted that only one of the two statutes should be read in the Notice phase, and by reading that statute alone, this doctrine did not apply. In other words, the Plaintiff would need to hire an expert and pay them to provide the affidavit for sending the Notice, even though they would not need the expert months later when they filed the lawsuit, or even years later when the lawsuit made it to trial.
The Defense doggedly claimed an expert witness was needed to prove exposing a person to latex who is allergic to latex is malpractice. Our Supreme Court brought sense to the line of cases and held that the portion of the statute which sought to preserve the common law doctrine that expert witnesses were unnecessary when the alleged negligence could be understood by lay people with out the need for experts, applied to the Notice stage of a proceeding. To read the two statutes otherwise would “create an absurd result.”
We thank the South Carolina Supreme Court for granting our request to have this case transferred from the SC Court of Appeals so as to allow the decision to be expedited and to allow the decision to be addressed in a fashion that promoted judicial economy.
Additional Links and Resources:
What Should I do if I Suspect Medical Malpractice?
Legal News involving Medical Malpractice
Additional Sources for Further Information on Medical Negligence:
James, John T. "A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care." Patient Safety America 9, no. 3 (September 2013): 122-28 http://journals.lww.com/journalpatientsafety/Fulltext/2013/09000/A_New,_Evidence_based_Estimate_of_Patient_Harms.2.aspx
Allen, Marshall. "How Many Die From Medical Mistakes in U.S. Hospitals?" Last modified September 19, 2013. http://www.propublica.org/article/how-many-die-from-medical-mistakes-in-us-hospitals
These notes are for guidance and general knowledge but are not intended to be legal advice and may not be relied upon as such. Questions seeking legal advice need to be asked of a lawyer and you should contact our office to set an appointment with a licensed lawyer.