Epstein v. Brown, 25953.

• Citation: 610 S.E.2d 816,363 S.C. 372
• Decision Date: 21 March 2005
• Docket Number: No. 25953.,25953.
• Court: United States State Supreme Court of South Carolina
• Parties: Franklin M. EPSTEIN, M.D. and Southern Neurological Institute, Appellants, v. David A. BROWN, Esquire, Respondent.

363 S.C. 372

610 S.E.2d 816

Franklin M. EPSTEIN, M.D. and Southern Neurological Institute, Appellants, v. David A. BROWN, Esquire, Respondent.

No. 25953.

Supreme Court of South Carolina.

Heard January 4, 2005.

Decided March 21, 2005.

Hugh M. Claytor, and Heather Goetz Ruth, of Womble, Carlyle, Sandridge and Rice, of Greenville, for Appellants.

M. Dawes Cook, Jr., and P. Gunnar Nistad, of Barnwell, Whaley, Patterson and Helms, of Charleston, for Respondents.

Justice WALLER:

We certified this case from the Court of Appeals pursuant to Rule 204(b), SCACR. The issue on appeal involves the date on which the statute of limitations (SOL) for a legal malpractice claim begins to run.

FACTS

Dr. Franklin Epstein (Appellant) performed spinal fusion surgery on Marshall O. Welch in February, 1996. Welch died three days later of complications.¹ Welch's estate brought wrongful death and survival actions against Dr. Epstein alleging medical malpractice. Respondent, David Brown, a licensed South Carolina attorney, represented Epstein. On February 18, 1998, a jury returned a verdict of $3,000,000 in the wrongful death action, and $28,535.88 in the survival action. The following day, the jury assessed $3,000,000 punitive damages against Dr. Epstein.

Brown filed a notice of appeal on behalf of Dr. Epstein. Although Brown remained counsel of record during the appeal, Dr. Epstein was represented on appeal by Stephen Groves, John Hamilton Smith, and Steven Brown. The Court of Appeals affirmed the verdicts on July 31, 2000. Welch v. Epstein, 342 S.C. 279, 536 S.E.2d 408 (Ct.App.2000). This Court denied certiorari in January 2001.

Dr. Epstein filed this legal malpractice claim against Brown on January 9, 2002, alleging breach of fiduciary duty, negligence, and breach of contract. Brown moved for summary judgment on the ground that Dr. Epstein had failed to commence the action within the applicable three-year statute of limitations (SOL). The trial court ruled the SOL began to run, at the latest, on February 18, 1998, the date of the jury's verdict, such that this action was untimely. Accordingly, Brown was granted summary judgment.

STANDARD OF REVIEW

In reviewing the grant of a summary judgment motion, this Court applies the same standard as the trial court under Rule 56(c), SCRCP: "summary judgment is proper when `there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.'" Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438-439 (2003), citing Baughman v. American Tel. and Tel. Co., 306 S.C. 101, 410 S.E.2d 537, 545 (1991)

. In determining whether summary judgment is appropriate, the evidence and its reasonable inferences must be viewed in the light most favorable to the nonmoving party. Id. at 115, 410 S.E.2d at 545.

ISSUE

Did the trial court err in ruling Dr. Epstein knew, or should have known, he had a possible claim against Brown by the date of the jury's adverse verdict, such that the SOL began to run on that date?

DISCUSSION

South Carolina Code Ann. § 15-3-530 (Supp.2003) provides a three year statute of limitations for legal malpractice lawsuits. Under the discovery rule, the statute of limitations begins to run from the date the injured party either knows or should know, by the exercise of reasonable diligence, that a cause of action exists for the wrongful conduct. See Dean v. Ruscon Corp., 321 S.C. 360, 468 S.E.2d 645 (1996)

; S.C.Code Ann. § 15-3-535. See also Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct.App.1997). The exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist. The statute of limitations begins to run from this point and not when advice of counsel is sought or a full-blown theory of recovery developed. Id. (emphasis supplied). Under § 15-3-535, the statute of limitations is triggered not merely by knowledge of an injury but by knowledge of facts, diligently acquired, sufficient to put an injured person on notice of the existence of a cause of action against another. True v. Monteith, 327 S.C. 116, 120, 489 S.E.2d 615, 617 (1997).

In his complaint, Dr. Epstein alleged Brown was negligent in numerous particulars, including: failing to conduct an adequate investigation, failing to advise Epstein to settle, failing to keep Epstein adequately informed during the pendency of the case, representing multiple defendants with conflicts of interest, forgetting to call expert witnesses, and adopting a defense which was contrary to Dr. Epstein's medical opinion. Counsel for Dr. Epstein conceded that many of these allegations were within Dr. Epstein's knowledge at the time of the jury's verdict. The court found the majority of the damages alleged by Dr. Epstein stemmed from the adverse jury verdict, and the damages to his reputation resulting from the publicity were all damages suffered at the time of the verdict. The court concluded that, although these damages might be mitigated by a successful appeal, they could never be wholly eliminated by a reversal of the jury's verdict. Accordingly, the trial court ruled Dr. Epstein either knew, or should have known, of a possible claim against Brown by the date of the adverse verdict, such that the SOL began to run on that date.

Dr. Epstein contends that because Brown remained counsel of record during the pendency of the appeal,² the SOL did not begin to run until this Court denied certiorari, in January 2001. Dr. Epstein urges us to adopt the "continuous representation" rule to toll the SOL during the period an attorney continues to represent a client on the same matter which forms the basis of a legal malpractice action. We decline to adopt the continuous representation rule in the context of a legal malpractice claim and adhere, instead, to the discovery rule set forth by the Legislature.

Under the continuous representation rule, the SOL is tolled during the period an attorney continues to represent the client on the same matter out of which the alleged malpractice arose. See George L. Blum, Attorney Malpractice — Tolling or Other Exceptions to Running of Statute of Limitations, 87 A.L.R. 5th 473, § 4 (2001). In those jurisdictions where it is adopted, the rule requires: 1) ongoing representation by the lawyer; 2) on the same subject matter; and 3) continuous representation. See generally, Mallen and Smith, Legal Malpractice, § 22.13, p. 431 (5th Ed. 2000).

This Court has not specifically addressed the continuous representation rule. However, in Holy Loch Distributors v. Hitchcock, 332 S.C. 247, 503 S.E.2d 787 (Ct.App.1998), rev'd on other grounds, 340 S.C. 20, 531 S.E.2d 282 (2000), the Court of Appeals specifically declined to adopt the continuous representation rule, based in large part on this Court's refusal to adopt the "continuous treatment" rule in the context of medical malpractice cases. See Preer v. Mims, 323 S.C. 516, 519, 476 S.E.2d 472, 473 (1996)

.

In Harrison v. Bevilacqua, 354 S.C. 129, 580 S.E.2d 109 (2003), this Court declined to adopt the continuous treatment rule. In Harrison, the plaintiff was a schizophrenic who had been involuntarily committed in 1982. He remained there until 1995, and ultimately brought suit against the defendant, the state hospital, alleging he had been confined too long and had been improperly medicated. He argued his causes of action should be deemed to have accrued on the date of his discharge in 1995. We defined the continuous treatment rule as follows:

The so-called continuous treatment rule as generally formulated is that if the treatment by the doctor is a continuing course and the patient's illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.

354 S.C. at 135, 580 S.E.2d at 112, quoting David W. Louisell & Harold Williams, Medical Malpractice, § 13.02[3] (1996).

In Harrison, we recognized the policy behind adoption of the continuous treatment rule being that, without such a rule, a plaintiff would be required to bring suit against his or her physician before treatment is even terminated. 354 S.C. at 136, 580 S.E.2d at 113. Alternative reasons justifying the rule are "a patient's right to place trust and confidence in his physician," the difficulty of determining the precise timing of an act of malpractice during continuous treatment, and "basic tort principles of fairness and deterrence." Id. at 136-137, 580 S.E.2d at 113. Notwithstanding the very legitimate policy rationales in favor of adoption of a continuous treatment rule, we declined to adopt it, finding the Legislature has set absolute time restrictions for the bringing of medical malpractice actions in the statutes of repose both for medical malpractice and for persons operating under disability. See S.C.Code Ann. §§ 15-3-545 and 15-3-40. Id.

We find the justifications favoring adoption of the continuous treatment rule are similar to those justifying the continuous representation rule, to wit: to avoid disruption of the attorney-client relationship; to allow an attorney to continue efforts to remedy a bad result, even if some damages have occurred and the client is aware of the attorney's errors. See generally, Mallen and Smith, Legal Malpractice, § 22.13 (5th Ed. 2000). See also United States National Bank of Oregon v. Davies, 274 Or. 663, 548 P.2d 966, 970 (1976) (it seems anomalous to force a plaintiff to contend in the underlying litigation on appeal that he is entitled to a...