South Carolina

SOUTH CAROLINA

Table of Contents

Compiled and Edited by:

Gray T. Culbreath Robert F. Goings Collins & Lacy, P.C. 1330 Lady Street, Suite 601 Columbia, South Carolina 29201 Phone: (803) 256-2660 Fax: (803) 771-4484 http://www.collinsandlacy.com Table of Contents

TORT REFORM

A Compendium of Tort Reform Enactments in All 50 States

1. Introduction – History of Tort Reform in SOUTH CAROLINA 2. Joint and Several Liability 3. Damage Caps 4. Punitive Damages 5. Medical Malpractice Reform 6. Products Liability Reform 7. Attorneys Fees 8. Practice Pointers 9. Special Issues 1. Introduction - History of Tort Reform in South Carolina

In 2005, the South Carolina General Assembly passed tort reform legislation in the form of Bill 3008 (The Economic Development, Citizens and Small Business Protection Act of 2005) and Bill 83 (The South Carolina Non-Economic Damages Award Act of 2005, a/k/a The Medical Malpractice Reform Bill). This legislation applies to all causes of action which arise after July 1, 2005 and alters the law and procedure for medical malpractice and certain professional negligence cases, and expert witness practice and qualification. The reform also amended the Frivolous Proceedings Act and the statute of repose.

2. Joint and Several Liability

For causes of action that arose before July 1, 2005, each joint tortfeasor in South Carolina was responsible for the entirety of a plaintiff’s damages. Under the new law, S.C. Code Ann. § 15-38-15 (Supp. 2005), joint and several liability does not apply to a defendant who is found to be less than fifty percent (50%) at fault. A defendant must be found fifty percent (50%) at fault to be required to pay one hundred percent (100%) of the damages. If a defendant is found to be less than 50% at fault, then the defendant is only liable for the portion of damages attributed to it.

The statute provides three exceptions to the general rule set forth above. First, the limit on joint and several liability does not apply when two or more defendants act in concert. In this instance, the court will treat the defendants as a single party. Second, the limit on joint and several liability does not apply to a defendant whose conduct is determined to be willful, wanton, reckless, grossly negligent or intentional. Third, the limit on joint and several liability does not apply to conduct involving the use, sale, or possession of alcohol or drugs.

Section 15-38-15(C) provides a statutory procedure to determine allocation of fault. First, the jury or judge will specify the amount of plaintiff’s recoverable damages and determine plaintiff’s percentage of fault. The court will then reduce/subtract plaintiff’s percentage share of damages from total damages as provided for under Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). If two or more defendants are found liable for a plaintiff’s damages and the verdict is “for the same individual injury, death or damage to property,” then section 15-38-15(c)(3) provides, upon motion by at least one defendant, that the finder of fact must specify in a special verdict form the percentage of liability of each defendant whose actions are a proximate cause of the plaintiff’s injury. In determining the percent attributable to each defendant, any fault of the plaintiff will be included so that the total percentages of fault attributed to the plaintiff and the defendants must equal one hundred percent (100%). In determining the allocation of respective fault, oral argument is allowed by the parties but no new evidence may be presented.

The new law specifically allows for a defendant to raise the “the empty chair” defense on behalf of a nonparty tortfeasor. Section 15-38-15(D) provides that “a defendant shall retain the right to assert that another potential tortfeasor, whether or not a party contributed to the alleged injury or damages and/or may be liable for any or all of the damages alleged by any other party.” It is unclear in South Carolina whether fault can be allocated to a nonparty. The phrase “liable for any . . . of the damages” suggests allocation to a nonparty of some share of the damages should be allowed. On the other hand, the “retain the right” language of section 15-38-15(D) means that a nonparty “potential tortfeasor” is not allocated any fault in the process. Another unresolved issue raised by the “potential tortfeasor” language is whether a party defendant may join a potential tortfeasor as a party to the action.

Additionally, section 15-38-15(E) also provides a “setoff from any settlement received from any ‘potential tortfeasor’ prior to the verdict shall be applied in proportion to each defendant’s percentage of liability.”

3. Damage Caps

S.C. Code Ann. § 15-32-220 (Supp. 2005) caps non-economic damages in medical malpractice actions at $350,000.00 per claimant against a single health care provider or institution. In the event of multiple defendants that are health care providers or institutions, non-economic damages are capped at $350,000.00 per defendant for each claimant, but the total recovery amount of non-economic damages cannot exceed $1,050,000.00 for each claimant.

These caps only apply to non-economic damages which are defined as “nonpecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury.” See § 15-32-210. The caps do not apply to economic damages or punitive damages.

Additionally, these caps do not apply on non-economic damages if the jury determines the defendant was (a) grossly negligent, willful, wanton or reckless and such conduct proximately caused the plaintiff’s non-economic damages; (b) if the defendant engaged in fraud or misrepresentation related to the claim; or (c) If the defendant altered or destroyed medical records with the purpose or avoiding a claim or liability to the plaintiff. See § 15-32-220(E).

4. Punitive Damages

The tort reform legislation of 2005 did not limit or otherwise cap the recovery of punitive damages in civil actions. The South Carolina Supreme Court has been reluctant to impose a bright-line ratio test in a due process analysis. Yet, in the case of Atkinson v. Orkin Exterminating Co., Inc., 261 S.C. 156, 604 S.E.2d 385 (2004), the Court adopted precedent established by the United States Supreme Court in the Gore v. BMW and State Farm v. Campbell and held that single-digit multiplier of a punitive damages to compensatory damages does comports with due process.

5. Medical Malpractice Reform The South Carolina Legislature also has passed a number of tort reform measures applicable to claims arising after July 1, 2005 against hospitals, physicians, dentists, optometrists, chiropractors, licensed practical nurses, EMTs and paramedics, and home/residential facilities, which were aimed at curbing excessive verdict awards arising out of medical malpractice claims.

Other than caps on non-economic damages as outlined in Section 3 above, the legislation significantly altered medical malpractice action in South Carolina as follows:

1. Expert Affidavit Requirement – S.C. Code Ann. § 15-36- 100: a plaintiff in all cases of alleged professional negligence must file, along with the complaint, an affidavit of a qualified expert witness specifying at least one negligent act or omission by each defendant and set forth the factual basis of each claim. Failure to satisfy the requirement subjects the plaintiff to a motion to dismiss.

A. The language of section 15-36-100 suggests that the expert affidavit requirement only applies to claims brought against the following professionals: architects, attorneys at law, certified public accountants, chiropractors, dentists, land surveyors, medical doctors, marriage and family therapists, nurses, occupational therapists, optometrists, osteopathic physicians, pharmacists, physical therapists, physicians’ assistants, professional counselors, professional engineers, podiatrists, psychologists, radiological technicians, respiratory therapists, and veterinarians. The requirement for an expert affidavit also applies to all claims against “any licensed health care facility,” which includes any ambulatory surgical facility,” a hospital, an institutional general infirmity, a nursing home and a renal dialysis facility.

B. The qualifications of an expert are defined by section 15-36-100(A). The expert must be licensed and board certified. If the expert is not licensed and board certified, the expert must have actual professional knowledge and experience in the area of specialty as the result of (a) having been regularly engaged active practice of the area of specialty of his or her profession for at least three of the last five years or (b) taught in the specialty for at least half of his or her professional time as an employed member of the faculty of an educational institution which is accredited in the teaching of his or her profession for at least three of the last five years immediately preceding the opinion or (3) any combination of the active practice or the teaching of his or her profession in a manner which for at least three of the last five years immediately preceding the opinion. The statute also has a “catch all” provision which allows an expert who has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence.

C. If the statute of limitations will expire within 10 days of filing of complaint and plaintiff alleges an affidavit could not be prepared, then a plaintiff is granted 45 days to file an affidavit.

D. No affidavit is required to support negligence involving a 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.

2. Pre-Suit Mediation Requirement – S.C. Code Ann. § 15- 79-125 in all medical malpractice actions, a plaintiff must file a Notice of Intent along with the expert affidavit. The Notice of Intent must contain the name all adverse parties, the statement of facts, and all interrogatory disclosures required by Rule 33, SCRCP.

A. Filing of the Notice of Intent tolls the statute of limitations provided all defendants are properly served.

B. Discovery is allowed during pre-suit mediation. Standard interrogatories must be filed with the notice and all parties may subpoena medical records and other relevant documents. However, depositions are only allowed with leave of court.

C. Between 90 and 120 days from service of notice, all parties must participate in a pre-litigation mediation conference. If the mediation is not successful, plaintiff may then file suit, which must occur and be filed prior to the expiration of the statute of limitations or within 60 days of the court’s determination mediation will not resolve the matter.

3. Emergency Medical Care – S.C. Code Ann. § 15-32-230 applies if a patient is not medically stable and in immediate threat of death or serious bodily injury and the alleged damages occur from care rendered prior to discharge from an emergency room, obstetric room, or surgical suite.

A. If a medical malpractice claim arises in a “genuine emergency situation” involving an immediate threat of death or serious bodily injury to patient, no physician may be held liable unless the physician is found grossly negligent.

B. If an action arises out of obstetric care rendered by physician on an emergency basis when no prior doctor patient relationship existed between the physician or a member of the practice group or the patient has not received prenatal care, such physician is not liable unless gross negligence is proven.

6. Products Liability Reform

South Carolina has not enacted legislation aimed at specifically reforming products liability law.

7. Attorneys Fees The tort reform legislation of 2005 substantially rewrote the South Carolina Frivolous Civil Proceedings Sanctions Act, found at section 15-36-10. The new law provides that the signature of an attorney or a pro se litigant constitutes a certification to the court that the document is not frivolous, interposed for delay, or submitted from an improper purpose. The amendments provide that an attorney, as well as the party, may be sanctioned for filing a frivolous pleading, motion, or document. Sanctions may include payment of costs and attorney’s fees resulting from a frivolous proceeding, a monetary fine to the court, and a nonmonetary directive, such as injunctive relief, design to deter future frivolous actions or actions pursued in bad faith.

Any sanction imposed against an attorney under this statute shall be reported to the South Carolina Commission of Lawyer Conduct, the South Carolina Supreme Court, and a public record of sanctioned attorneys must be maintained and reported annually to the Governor, Senate, and House of Representatives.

8. Practice Pointers 9. Special Issues

1. Statute of Repose

Pursuant to Section § 15-3-640, the Legislature amended the statute of repose for claims involving the improvement and construction of real property from thirteen (13) year to eight (8) years from date of substantial completion. Substantial completion is determined by (1) written agreement between contractor and owner, (2) certificate of occupancy in new construction, or (3) final inspection by appropriate official in cases of improvement to existing structure.

2. Venue For causes of action arising before July 1 2005, the venue was proper in the county where the defendant resided at the time the action was filed. If the defendant was a non-resident, the plaintiff could bring the action in any county.

For causes of action arising on or after July 1, 2005, section 15-7-30 (Supp. 2005) provides that venue is proper where the most substantial part of the alleged act or omission giving rise to the cause of action occurred, in addition to the residence or principal place of business of a defendant. The amended venue statute defines “principal place of business” for a corporation, a limited liability partnership, a limited liability company and a limited liability partnership, whether domestic or foreign. The statute aims at placing venue in the county where the company has the most significant or most concentrated activities. The statute also provides that non-resident individual defendants and foreign entities that are not licensed to do business in South Carolina may be sued in the county where the plaintiff resides or, if a business entity, at the plaintiff’s principal place of business.