Eades v. Palmetto Cardiovascular & Thoracic, PA

• Decision Date: 28 February 2018
• Docket Number: Opinion No. 27770,Appellate Case No. 2015-001967
• Citation: 422 S.C. 196,810 S.E.2d 848
• Court: South Carolina Supreme Court
• Parties: Johnny EADES and Barbara Eades, Respondents, v. PALMETTO CARDIOVASCULAR AND THORACIC, PA ; James M. Benner, MD; Mark J. Epler, MD; Trident Medical Center, LLC; Columbia/HCA Healthcare Corporation of South Carolina ; HCA Healthcare-South Carolina; Trident Medical Center; Trident Health System; Palmetto Primary Care Physicians, LLC; Trident Emergency Physicians ; LLC; Brian R. Whirreth, MD; Patricia Campbell, MD ; Christine E. McNeal, MD; Matthew Wallen, MD; Charleston Radiologists, PA; Joseph M. Mullaney, MD; Tri-County Radiology Associates, PA; and Troy Marlon, MD, Defendants, Of whom Palmetto Primary Care Physicians, LLC and Trident Emergency Physicians, LLC are Petitioners.

422 S.C. 196

810 S.E.2d 848

Johnny EADES and Barbara Eades, Respondents,

v. PALMETTO CARDIOVASCULAR AND THORACIC, PA ; James M. Benner, MD; Mark J. Epler, MD; Trident Medical Center, LLC; Columbia/HCA Healthcare Corporation of South Carolina ; HCA Healthcare-South Carolina; Trident Medical Center; Trident Health System; Palmetto Primary Care Physicians, LLC; Trident Emergency Physicians ; LLC; Brian R. Whirreth, MD; Patricia Campbell, MD ; Christine E. McNeal, MD; Matthew Wallen, MD; Charleston Radiologists, PA; Joseph M. Mullaney, MD; Tri-County Radiology Associates, PA; and Troy Marlon, MD, Defendants,Of whom Palmetto Primary Care Physicians, LLC and Trident Emergency Physicians, LLC are Petitioners.

Appellate Case No. 2015-001967

Opinion No. 27770

Supreme Court of South Carolina.

Heard December 1, 2016

Filed February 28, 2018

Thomas C. Salane and R. Hawthorne Barrett, both of Turner Padget Graham & Laney, PA, of Columbia, for Petitioner.

Gary Lane Cartee, of North Charleston, for Respondents.

JUSTICE HEARN :

This case requires us to decide whether an expert witness affidavit submitted prior to the commencement of a medical malpractice action complied with section 15-36-100(A) of the South Carolina Code (Supp. 2016). The trial court found the affidavit insufficient based on the expert's practice area and dismissed the Notice of Intent to File Suit (NOI). We reverse, finding the statute permits the production of an affidavit from an expert who does not practice in the same area of medicine as the allegedly negligent doctor.

BACKGROUND

This medical malpractice action arose after Johnny Eades sought treatment from numerous healthcare providers, including Petitioners Palmetto Primary Care Physicians, LLC and Trident Emergency Physicians, LLC, for a blockage and aneurysm of the left iliac artery in July and August of 2009. Three years later, Mr. Eades and his wife filed an NOI to bring the medical malpractice action in Charleston County. Two days after filing the NOI, the Eades filed answers to interrogatories listing Dr. Paul A. Skudder as an expert witness, along with an affidavit from Skudder pursuant to section 15-79-125 of the South Carolina Code (Supp. 2016).

All defendants, including Petitioners, filed motions to dismiss the Eades' NOI. Following a hearing, the trial court granted the defendants' motions on two grounds, holding: (1) section 15-79-125 requires medical malpractice plaintiffs to file expert affidavits in compliance with section 15-36-100 contemporaneously with the NOI; and (2) the Eades' expert affidavit was defective because it did not conform to the requirements of section 15-36-100(A). Specifically, the trial court found the expert affidavit was insufficient because it did not indicate that Skudder had "actual professional knowledge and experience" in the same practice areas as Dr. Campbell and Dr. Wallen.¹ The order further stated, "Dr. Skudder's affidavit fails to provide the proper qualifications, required by section 15-36-100, that would permit Dr. Skudder to present an expert opinion about Dr. Campbell and Dr. Wallen."

The court of appeals reversed in an unpublished opinion pursuant to this Court's decision in Ranucci v. Crain , 409 S.C. 493, 763 S.E.2d 189 (2014), which held that section 15-79-125 incorporates the safe harbor provision of 15-36-100(C)(1) and extends the time for filing the expert witness affidavit in medical malpractice actions where the statute of limitations is in danger of expiring.² In a footnote, the court of appeals summarily concluded the question of the sufficiency of the expert affidavit was not preserved for review and declined to address the issue. This Court granted certiorari to review the court of appeals' decision.

ISSUES PRESENTED

Did the court of appeals err in failing to affirm the dismissal as to Petitioners because the expert affidavit did not comply with section 15-36-100 ?

DISCUSSION

Finding the sufficiency of the Eades' expert affidavit is preserved for appellate review,³ we turn to the merits of the issue. Petitioners argue the court of appeals erred in failing to affirm the trial judge's dismissal on the grounds that the Eades' affidavit did not comport with the provisions of section 15-36-100(A). Specifically, Petitioners claim Skudder's affidavit was defective because it did not indicate that he practiced in the same area of medicine as Campbell and Wallen, in violation of the statutory requirements. We disagree.

"Questions of statutory interpretation are questions of law, which we are free to decide without any deference to the court below." Grier v. AMISUB of S.C., Inc. , 397 S.C. 532, 535, 725 S.E.2d 693, 695 (2012). Statutes in derogation of the common law are to be strictly construed. Epstein v. Coastal Timber Co., 393 S.C. 276, 285, 711 S.E.2d 912, 917 (2011). "Under this rule, a statute restricting the common law will ‘not be extended beyond the clear intent of the legislature.’ " Grier , 397 S.C. at 536, 725 S.E.2d at 696 (quoting Crosby v. Glasscock Trucking Co., 340 S.C. 626, 628, 532 S.E.2d 856, 857 (2000) ). Statutes limiting a claimant's right to bring suit are subject to this rule. Id. In Grier , this Court reviewed subsection (B) of 15-36-100 and found the statute restricted a plaintiff's common law right to bring a malpractice claim, requiring the Court to strictly construe the statute's requirements. 397 S.C. at 538, 725 S.E.2d at 697.

Prior to initiating a medical malpractice action, section 15-79-125(A) requires a plaintiff to contemporaneously file a supporting affidavit from an expert witness in compliance with section 15-36-100. Section 15-36-100(A) defines an expert witness as an individual who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who:

(1) is licensed by an appropriate regulatory agency to practice his or her profession in the location in which the expert practices or teaches; and

(2)(a) is board certified by a national or international association or academy which administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or

(b) has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:

(i) the active practice of the area of specialty of his or her profession for at least three of the last five years immediately preceding the opinion;

(ii) the teaching of the area of practice or specialty of his or her profession 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

(iii) any combination of the active practice or the teaching of his or her profession in a manner which meets the requirements of subitems (i) and (ii) for at least three of the last five years immediately preceding the opinion;

(3) is an individual not covered by subsections (A)(1) or (2), that has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual's study, experience, or both. However, an affidavit filed pursuant to subsection (B) by an expert qualified under this subsection must contain an explanation of the expert's credentials and why the expert is qualified to conduct the review required by subsection (B). The defendant is entitled to challenge the sufficiency of the expert's credentials pursuant to subsection (E).

On the merits, Petitioners contend Skudder's affidavit was insufficient under section 15-36-100(A) because it did not demonstrate he had "actual professional knowledge and experience" in the same specific practice areas as Campbell and Wallen.⁴ Petitioners categorize Campbell and Wallen's areas of practice as emergency medicine and primary care, and attempt to disqualify Skudder based on his classification as a vascular and critical care surgeon. Thus, the crux of Petitioners' argument hinges on the interpretation of "area of practice or specialty" as contained in section 15-36-100(A)(2)(a) & (b).

Notwithstanding our disagreement with Petitioners' proposed application of subsection (A)(2), we need not reach that issue because we find Skudder's affidavit comports with section 15-36-100(A)(3). Subsection (A)(3) provides that an individual who is not otherwise qualified under subsections (A)(1) or (2) may still qualify as an expert if he has "scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual's study, experience, or both." S.C. Code § 15-36-100(A)(3). To qualify under this provision, an affidavit filed by a proposed expert must contain an explanation of the expert's credentials and their relevance to the case. Id. Thus, this subsection contemplates the production...