Weaver v. Lentz

• Decision Date: 04 March 2002
• Docket Number: No. 3458.,3458.
• Citation: 561 S.E.2d 360,348 S.C. 672
• Court: South Carolina Court of Appeals
• Parties: Beth B. WEAVER, as Personal Representative of the Estate of William Scott Weaver, Respondent/Appellant, v. John Luther LENTZ, Jr., Appellant/Respondent.

348 S.C. 672

561 S.E.2d 360

Beth B. WEAVER, as Personal Representative of the Estate of William Scott Weaver, Respondent/Appellant, v. John Luther LENTZ, Jr., Appellant/Respondent.

No. 3458.

Court of Appeals of South Carolina.

Heard November 8, 2001.

Decided March 4, 2002.

Julius W. McKay, II and Kathleen Devereaux Schultz, both of McKay, McKay & Settana, of Columbia, for appellant/respondent.

Kenneth M. Suggs, D. Michael Kelly, B. Randall Dong, and Shannon Lee Felder, all of Suggs & Kelly, of Columbia, for respondent/appellant.

STILWELL, J.:

In this wrongful death action, the parties filed cross appeals from the jury's award of actual and punitive damages and the trial judge's reduction of the verdict. Dr. Lentz argues the trial court erroneously applied the wrongful death statute of limitations rather than the health care provider statute of limitations, erred in admitting certain evidence, and erred in denying his new trial motions. Weaver argues the trial court improperly reduced the amount of the actual damages based on comparative negligence. We affirm.

BACKGROUND

Weaver initially visited Dr. Lentz, complaining primarily of neck pain and headaches resulting from an auto accident. Dr. Lentz saw Weaver on a regular basis during the ensuing years and tried several drug combinations to manage the pain with overlapping prescriptions and multiple substitutions. Weaver frequently complained of neck muscle pain, muscle spasms, headaches, insomnia, depression, and anxiety. He was hospitalized multiple times for physical problems where overdose or addiction concerns were noted. In December 1993, Weaver was hospitalized for psychiatric evaluation and treatment for addiction to prescription pain medications and was diagnosed with severe major depression and borderline personality disorder. On February 17, 1994, Weaver died from an overdose of Darvocet, a drug which had been prescribed by Dr. Lentz. The parties dispute whether the death was an accident or suicide. Weaver's widow, Beth, brought this wrongful death action as personal representative, alleging Dr. Lentz negligently over-prescribed pain medications under circumstances sufficient to put him on notice Weaver was addicted and abusing them. One of Weaver's expert witnesses identified and charted the various medications, dosages, and dosage overlaps Weaver had been prescribed over the years. Another expert testified Weaver was addicted to prescription medication at the time of his death, and Dr. Lentz should have been aware of the developing addiction problem. A third expert testified Dr. Lentz was negligent in his prescribing practices, based on the number of medications prescribed at one time, the drug class combinations, the long term use of addictive medications, and the failure to adequately treat and monitor Weaver as an addict or abuser.

I. Statute of Limitations

Dr. Lentz asserts the trial court erred in ruling the applicable statute of limitations was the wrongful death rather than the health care provider statute. Weaver counters with the argument that the statute of limitations should not be an issue because the court erred in allowing it to be raised as an affirmative defense by an amendment to the pleadings.

A.

We first address Weaver's counter-argument, and find no error in allowing the amendment. The motion to amend was made and granted over objection on the day of trial before the case began. Weaver did not move for a continuance and has not demonstrated that the amendment was prejudicial. Amendments are liberally allowed within the sound discretion of the trial judge, and the opposing party must show prejudice to warrant reversal. See Austin v. Conway Hosp., Inc., 292 S.C. 334, 338, 356 S.E.2d 153, 155-56 (Ct.App.1987)

; Foggie v. CSX Transp., Inc., 315 S.C. 17, 22, 431 S.E.2d 587, 590 (1993). "Prejudice occurs when the amendment states a new claim or defense which would require the opposing party to introduce additional or different evidence to prevail in the amended action." Ball v. Canadian Am. Exp. Co., 314 S.C. 272, 275, 442 S.E.2d 620, 622 (Ct.App. 1994). The evidence relevant to the statute was the same evidence relevant to other issues.

B.

Dr. Lentz insists that since the evidence demonstrates both Scott and Beth Weaver knew or should have known that he was addicted to prescription medication before his death based on his hospitalization in December 1993 for treatment of depression and pain medication abuse, the three year statute of limitations should have begun to run by January 1994, at the latest. This argument is based on the premise that this wrongful death cause of action is in reality a medical malpractice case. This argument is unavailing, however, because the wrongful act complained of is Weaver's death, rather than his addiction. Thus, notice of Weaver's addiction prior to his death is irrelevant in this setting.

The wrongful death statute, commonly referred to as Lord Campbell's Act, created a new cause of action that was not recognized at common law. S.C.Code Ann. § 15-51-10 (1976 & Supp.2001); Crosby v. Glasscock Trucking Co., 340 S.C. 626, 628, 532 S.E.2d 856, 856 (2000). A wrongful death cause of action does not exist before death and arises only upon the death of the injured person. Hawkins v. Pathology Assocs. of Greenville, P.A., 330 S.C. 92, 104, 498 S.E.2d 395, 402 (Ct.App.1998). The statute of limitations applicable to wrongful death actions provides that the period begins to run upon the death of the person. S.C.Code Ann. §§ 15-3-530(6) (1976 & Supp.2001).

The wrongful death action was served on January 21, 1997, and thus was commenced within three years of Weaver's death. Dr. Lentz argues the language in Garner v. Houck that "wrongful death actions are actions to recover damages for injury to the person, and, therefore, the health care provider statute of limitations is applicable to wrongful death actions" makes it possible to have notice of a claim for wrongful death prior to an actual death. Garner v. Houck, 312 S.C. 481, 488, 435 S.E.2d 847, 850 (1993). This argument misses the point of Garner, which applied the health care provider statute of limitations to extend the discovery period subsequent to death because the autopsy results were necessary to discover the cause of the death and therefore give notice of a possible claim. In this case, the death itself was notice, and the action was timely commenced under either the wrongful death or health care provider statute of limitations.

II. Expert Testimony on Loss of Earnings

As part of the evidence of damages, Weaver presented the testimony of a vocational rehabilitation expert, Dr. William Stewart, and an economics expert, Dr. Oliver Wood. Dr. Lentz contends the court erred in admitting Dr. Wood's testimony about loss of future earnings because it lacked a proper factual foundation. We find no error.

Prior to Dr. Wood's testimony, Dr. Stewart evaluated Weaver's employment records from 1968 to October 1993. According to Dr. Stewart, Weaver's job performance showed a significant change from 1990 to 1991. Prior to that time, he had received good evaluations during his long employment with Springs Industries and his most recent employment with J.P. Stevens Automotive. However, his evaluation in October 1991 showed significant problems. Weaver was fired by J.P. Stevens and his subsequent employers for poor job performance and was last employed from August to October 1993. Dr. Stewart opined Weaver's employment history presented the classic profile of a person with an addiction problem. His peak earning capacity of approximately $51,000 per year was attained in 1989.

Weaver's treating psychiatrist noted in his discharge summary from the 1993 hospitalization that Weaver was "severely impaired with psychotic depression and severe borderline personality disorder," and opined that Weaver was "completely and entirely disabled" and would not be able to return to active work. When asked what effect these conclusions may have upon his opinion of Weaver's future employability, Dr. Stewart testified that if the findings were accepted as correct, Weaver would not be employable. Dr. Stewart indicated his initial opinion was made without reference to Weaver's medical records, but he did not recant his earlier testimony. No motion was made to have Dr. Stewart's testimony stricken, nor was it objected to as lacking factual foundation.

When Dr. Wood was called to testify, Dr. Lentz objected to the admission of his testimony because the economic calculations of future lost earnings were based upon Dr. Stewart's vocational opinion, which was that Weaver had work skills and abilities which qualified him to earn up to at least $50,953 per year as demonstrated by his earnings in 1989. Dr. Lentz argued Weaver had no future earning capacity due to his psychological problems and that there was no evidence to support such testimony based on his more recent poor performance and inability to hold a job. The trial court overruled the objection.

"The decision to admit or exclude expert testimony rests within the trial court's sound discretion and will not be reversed absent an abuse of that discretion." Gazes v. Dillard's Dep't Store, 341 S.C. 507, 512, 534 S.E.2d 306, 309 (Ct.App.2000). Dr. Wood's testimony unquestionably met the standard for admissibility, and any question as to its factual basis goes to its credibility, not its admissibility. The credibility of evidence is properly a question for the jury. The standard of admissibility for evidence of future damages is "`any evidence which tends to establish the nature, character, and extent of injuries which are the natural and proximate consequences of [the] defendant's acts ... if otherwise competent.' " Pearson v. Bridges, 344 S.C. 366, 372, 544 S.E.2d 617, 620 (2001) (quoting Martin v. Mobley, 253 S.C. 103, 109, 169 S.E.2d 278, 281-282 (1969)).

Dr. Stewart's testimony provides sufficient foundation for...