David v. McLeod Regional Medical Center

Decision Date23 January 2006
Docket NumberNo. 26020.,26020.
Citation626 S.E.2d 1
PartiesWillie May DAVID and J.D. David, Appellants, v. McLEOD REGIONAL MEDICAL CENTER, Dr. Ken Brusett, Individually, Pee Dee Cardiovascular Surgeons, Pee Dee Pathology, and Dr. H.K. Habermeier, Individually, Respondents.
CourtSouth Carolina Supreme Court

Eduardo K. Curry and Carl B. Grant, both of Curry & Counts, of Charleston; and Jayne G. Helm, of Mt. Pleasant, for Appellants.

J. Rene Josey, of Turner Padget Graham & Laney, of Florence; Mark W. Buyck, Jr., of Wilcox Buyck & Williams, of Florence; and Robert H. Hood, D. Nathan Hughey, and Deborah H. Sheffield, all of Hood Law Firm, of Charleston, for Respondents.

Chief Justice TOAL.

Willie Mae David (Appellant), the plaintiff in the underlying medical malpractice action, appeals the trial court's decision granting the respondents' motions for summary judgment. This case was certified from the court of appeals pursuant to Rule 204(b), SCACR. We withdraw our original opinion in this matter and substitute it with this opinion affirming the trial court's decision.


Appellant underwent surgery after her family doctor found a lesion on Appellant's lower left lung. Specifically, Appellant underwent a "wedge biopsy," where a thoracic surgeon extracted a portion of the suspicious tissue and sent the tissue to a pathologist for diagnosis. The pathologist returned a preliminary diagnosis of "probable pulmonary blastoma," a rare form of cancer, which was confirmed by the pathologist's partner. Based on this diagnosis, the thoracic surgeon decided to remove the lower left portion of Appellant's lung while Appellant was still anesthetized and unconscious.

A final pathology report, issued three days after the surgery, concluded that the lesion was not cancerous, but rather, a "pulmonary endometrioma;" a rare form of endometriosis which, from a visual inspection, closely resembles pulmonary blastoma.1

Appellant filed the underlying action and named the following parties as defendants: (1) the hospital where the surgery took place (McLeod Regional), (2) the thoracic surgeon who performed the surgery (Dr. Brusett), (3) Dr. Brusett's practice group (Pee Dee Cardiovascular Surgeons), (4) the pathologist who provided the preliminary diagnosis (Dr. Habermeier), and (5) Dr. Habermeier's practice group (Pee Dee Pathology). Appellant claimed that she suffers from several ailments as a result of the surgery, including chest and back pain, shortness of breath, and anxiety.

Respondents filed separate motions for summary judgment.2 McLeod Regional sought summary judgment on the grounds that any alleged malpractice was performed by independent contractors; therefore, the hospital could not be vicariously liable for Appellant's alleged injuries. The remaining Respondents sought summary judgment arguing that Appellant had failed to establish the essential elements of her case; specifically, that Appellant had failed to produce expert testimony establishing the applicable standard of care, breach of that standard, and a causal connection between the breach and Appellant's injuries. The trial court granted the Respondents' motions for summary judgment in three separate orders. Appellant now raises the following issues for review:

I. Did the trial court err in granting the respondent physicians' motions for summary judgment?

II. Did the trial court err in holding that McLeod Regional was not vicariously liable for Appellant's alleged damages?

I. The Respondent Physicians' Motions for Summary Judgment

Appellant argues that the trial court erred in granting summary judgment in favor of the respondent physicians. We disagree.

When reviewing an order granting summary judgment, the appellate court applies the same standard as the trial court. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party must prevail as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party. Fleming, 350 S.C. at 493-94, 567 S.E.2d at 860.

As the trial court recognized, the rules of civil procedure describe what an affidavit must contain in order to establish an issue of fact sufficient to defeat a motion for summary judgment. Rule 56(e), SCRCP provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as to the matters stated therein."

A physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances. Durham v. Vinson, 360 S.C. 639, 650-51, 602 S.E.2d 760, 766 (2004). Additionally, medical malpractice lawsuits have specific requirements that must be satisfied in order for a genuine factual issue to exist. Specifically, a plaintiff alleging medical malpractice must provide evidence showing (1) the generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants' field of medicine under the same or similar circumstances, and (2) that the defendants departed from the recognized and generally accepted standards. Pederson v. Gould, 288 S.C. 141, 143-44, 341 S.E.2d 633, 634 (1986); Cox v. Lund, 286 S.C. 410, 414, 334 S.E.2d 116, 118 (1985). Also, the plaintiff must show that the defendants' departure from such generally recognized practices and procedures was the proximate cause of the plaintiff's alleged injuries and damages. Green v. Lilliewood, 272 S.C. 186, 193, 249 S.E.2d 910, 913 (1978). The plaintiff must provide expert testimony to establish both the required standard of care and the defendants' failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct of the defendants. Pederson, 288 S.C. at 143, 341 S.E.2d at 634. Therefore, in order to withstand a properly supported motion for summary judgment in a medical malpractice action, any affidavits presented to the court must first comply with the terms of Rule 56, SCRCP, and the evidence as a whole must meet the criteria laid out in Pederson and its progeny.

In the present case, Appellant relies solely on the affidavit of pathologist Dr. Brian Frist to create a genuine issue of material fact as to the commission of malpractice by the respondent physicians.3 The trial court ruled that Dr. Frist's affidavit failed to establish that he is familiar with the standard of care from which the respondent physicians allegedly deviated. We agree and find that the affidavit is insufficient.

In his affidavit, Dr. Frist's sole opinion as to Dr. Brusett's alleged malpractice is that Dr. Brusett failed "to make sure that he communicated to the pathologist his thoughts for treatment, so that the pathologist was aware of the treatment plan of the surgeon." First, Dr. Frist incorrectly relies on the assumption that the pathologist would have diagnosed Appellant's tumor differently had Dr. Brusett "communicated his thoughts for treatment" before Appellant's tumor was tested. Stated differently, Dr. Frist's affidavit fails to explain how Dr. Brusett's post-diagnosis treatment would have affected the pathologist's initial diagnosis of the tumor. As a result, there is no evidence that Dr. Brusett's failure to communicate Appellant's possible treatment options with the pathologist was the proximate cause of Appellant's injuries.

The dissent asserts that had the pathologist been aware that Dr. Brusett intended to immediately remove the affected portion of the lung upon a diagnosis of pulmonary blastoma, then the pathologist might have qualified or sought to confirm his preliminary diagnosis. The dissent's argument disregards the necessity that a surgeon be able to rely upon inter-operative diagnoses to determine a patient's proper treatment. Moreover, the position argued by the dissent would set the precedent that a speculative hypothetical may serve as the standard of care in an action for medical malpractice. In South Carolina, medical malpractice actions require a greater showing than generic allegations and conjecture.

Second, Appellant provides no evidence that her expert, Dr. Frist, is familiar with the standard of care that Dr. Brusett or Dr. Habermeier allegedly breached, nor does Appellant offer what the applicable standard of care might be. Nothing in Dr. Frist's affidavit, or in the record, suggests it was unreasonable for Dr. Brusett to extract the lesion after receiving a diagnosis of "probable pulmonary blastoma," and nothing in Dr. Frist's affidavit, or in the record, instructs the Court with any specificity as to how competent practitioners in these fields would have performed this procedure differently.

We are mindful of the important interests at stake in this case. People who receive sub-standard medical care must be able to recover for injuries caused by at-fault physicians, and Plaintiffs must have a meaningful opportunity to present and support their claims in court. However, all of the evidence in this case suggests that Appellant received competent medical care. This is a case where a thoracic surgeon removed a piece of suspicious tissue, a pathologist and his partner returned a preliminary diagnosis of rare cancer, and the surgeon decided to take the tissue out. In support of her claim, Appellant offers an expert's affidavits saying "you should have communicated better and you got the diagnosis wrong." The affidavits do not establish how the facts...

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