Fay v. Grand Strand Reg'l Med. Ctr., LLC
| Decision Date | 01 April 2015 |
| Docket Number | No. 5306.,Appellate Case No. 2010–167127.,5306. |
| Citation | 412 S.C. 185,771 S.E.2d 639 |
| Parties | Sean D. FAY, as Personal Representative for the Estate of Kelly L. Fay, Deceased, Respondent/Appellant, v. GRAND STRAND REGIONAL MEDICAL CENTER, LLC, d/b/a South Strand Ambulatory Care Center and Stephen W. Law, D.O., Dr. Richard Young, M.D., and Grand Strand Urology, LLP, Defendants, Of whom Stephen W. Law, D.O. is also an Appellant, and Of whom Dr. Richard Young, M.D., and Grand Strand Urology, LLP, are Respondents. |
| Court | South Carolina Court of Appeals |
J. Boone Aiken III, of Aiken Bridges Elliott Tyler & Saleeby, P.A., of Florence, and Andrew F. Lindemann, of Davidson & Lindemann, P.A., of Columbia, for Appellant.
John S. Nichols, of Bluestein Nichols Thompson & Delgado, and Ruskin C. Foster, of Mike Kelly Law Group, LLC, both of Columbia, for Respondent/Appellant.
Marian Williams Scalise and Lydia Lewis Magee, both of Richardson Plowden & Robinson, P.A., of Myrtle Beach, and Carmen Vaughn Ganjehsani, of Richardson Plowden & Robinson, P.A., of Columbia, for Respondents.
In this cross-appeal from a medical malpractice action, Sean Fay (Sean) argues the trial court erred in granting Dr. Richard Young's motion for a directed verdict on public policy grounds. In the appeal against Sean, Dr. Stephen Law argues the trial court erred in (1) denying his motion for a judgment notwithstanding the verdict (JNOV), (2) excluding evidence of Sean's admitted extramarital affair, and (3) refusing to enroll the judgment against him using the jury's determination of six percent negligence on his part and instead using joint and several liability. We affirm.
At approximately 8:00 a.m., Saturday, January 26, 2002, Kelly Fay (Kelly), accompanied by her husband Sean, presented to Grand Strand Regional Medical Center's (the Hospital1 ) emergency room, complaining of abdominal and right flank pain. Kelly believed it was caused by a kidney stone
because she had previously experienced the same pain, which had been a kidney stone. Dr. Stephen Law, the emergency room physician, examined her approximately four minutes after she arrived. She complained of mild nausea but had not vomited, and she denied fevers and chills. Kelly initially described her pain level as being a seven or eight out of ten, and it decreased to a five or six out of ten after receiving pain medication.
Her vital signs and temperature were normal when they were first taken.2 A physical examination revealed moderate to severe flank tenderness on the right side, but the abdomen was soft, non-tender, and non-distended. Dr. Law suspected a kidney stone
and ordered a kidney, ureter, and bladder (KUB) x-ray, which revealed a moderate-sized kidney stone
in the right kidney. A CT scan confirmed this and indicated a half centimeter in diameter kidney stone in the ureter of the right kidney. To rule out infection, Dr. Law also ordered a urinalysis, which showed no blood or bacteria in the urine.
After deciding Kelly was stable to discharge, Dr. Law spoke with Dr. Young, the on-call urologist, on the telephone to make sure he was available to examine Kelly on Monday. However, Dr. Law testified he was not seeking advice or permission from Dr. Young to admit Kelly. Dr. Law spoke with Kelly and Sean, allegedly informing them to immediately return to the emergency department if she experienced uncontrollable pain, nausea, vomiting, fever, or chills.3 Dr. Law additionally instructed them to call Dr. Young on Monday at 8:30 a.m. to schedule an appointment for that day. The nursing staff then provided written discharge instructions, which Kelly signed, informing the Fays to call or return to the emergency room if she developed a fever, intense pain, or vomiting. Kelly and Sean left the emergency room at approximately 12:00 p.m., and Kelly allegedly looked flushed, a little warm, and red. Notably, her temperature was not taken before she left.
About an hour later, after picking up a prescription, Kelly's temperature was, as testified to by Sean, either 101.3 or 101.6 degrees Fahrenheit. Over the weekend, she continued to experience a fever of 101.3 or 101.6 degrees Fahrenheit, severe chills, nausea, and vomiting. Kelly did not return to the emergency room because she would alternate between feeling better and worse throughout the weekend and believed she could wait until her appointment on Monday with Dr. Young.
After calling Dr. Young to schedule an appointment on Monday, Sean went to work that morning, planning to return to take Kelly to see Dr. Young around 2:00 p.m. After failing to reach her by telephone several times, Sean returned home around 1:30 p.m. to find Kelly unresponsive, gagging, and convulsive. EMS responded and found Kelly on the floor, hot to the touch, with shallow rapid breathing. Upon arrival at the hospital, Kelly had a fever of 105 degrees. Kelly died Monday evening at the emergency room from clinical sepsis.4
Subsequently, Sean brought this wrongful death and survival action for medical malpractice against Dr. Law, the Hospital, and Dr. Young and his practice, Grand Strand Urology. The trial began on May 17, 2010. On May 26, at the close of all of the evidence, the trial court granted Dr. Young's motion for a directed verdict on public policy grounds. The jury returned a $3 million verdict against the Hospital and Dr. Law two days later.5 On June 7, 2010, Dr. Law and the Hospital filed post-trial motions for JNOV, new trial absolute, and new trial nisi remittitur. The trial court filed its orders denying all post-trial matters on June 24, 2010. Dr. Law filed a motion to reconsider, which the trial court ultimately denied on August 26, 2011. This appeal followed.
As a threshold matter, Dr. Young argues Sean failed to timely serve his notice of appeal, and Sean argues Dr. Law failed to timely serve his notice of appeal. We find both parties' appeals are properly before us and address the merits.
Sean contends the trial court erred in granting Dr. Young's motion for a directed verdict. We disagree.
In ruling on motions for directed verdict, “the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions.” McMillan v. Oconee Mem'l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006). “When considering directed verdict motions, neither the trial court nor the appellate court has authority to decide credibility issues or to resolve conflicts in the testimony or evidence.” Parrish v. Allison, 376 S.C. 308, 319, 656 S.E.2d 382, 388 (Ct.App.2007). “The issue must be submitted to the jury whenever there is material evidence tending to establish the issue in the mind of a reasonable juror.” Id. “Yet, this rule does not authorize submission of speculative, theoretical, and hypothetical views to the jury.” Id. at 319–20, 656 S.E.2d at 388.
The court must determine whether any evidence existed on each element of the cause of action. First State Sav. & Loan v. Phelps, 299 S.C. 441, 446, 385 S.E.2d 821, 824 (1989). “If the evidence as a whole is susceptible of more than one reasonable inference, a jury issue is created and the motion should be denied.” Martasin v. Hilton Head Health Sys., 364 S.C. 430, 437, 613 S.E.2d 795, 799 (Ct.App.2005). However, “[a] directed verdict should be granted where the evidence raises no issue for the jury as to the defendant's liability.” Guffey v. Columbia/Colleton Reg'l Hosp., Inc., 364 S.C. 158, 163, 612 S.E.2d 695, 697 (2005).
The appellate court will reverse the circuit court's ruling on a directed verdict motion only when no evidence supports the ruling or the ruling is controlled by an error of law. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434–35, 629 S.E.2d 642, 648 (2006). “The appellate court must determine whether a verdict for a party opposing the motion would be reasonably possible under the facts as liberally construed in his [or her] favor.” Erickson v. Jones St. Publishers, L.L.C., 368 S.C. 444, 463, 629 S.E.2d 653, 663 (2006).
A plaintiff in a medical malpractice case must present (1) evidence of the generally recognized practices and procedures that would be exercised by competent practitioners in a defendant doctor's field of medicine under the same or similar circumstances, (2) evidence that the defendant doctor departed from the recognized and generally accepted standards, practices, and procedures in the manner alleged by the plaintiff, and (3) evidence that the defendant's departure from the generally accepted standards and practices was the proximate cause of the plaintiff's injuries and damages. Hoard ex rel. Hoard v. Roper Hosp., Inc., 387 S.C. 539, 546, 694 S.E.2d 1, 4–5 (2010).
“The establishment of a doctor/patient relationship is a prerequisite to a claim of medical malpractice.” Roberts v. Hunter,
310 S.C. 364, 366, 426 S.E.2d 797, 799 (1993). “The relation is a consensual one wherein the patient knowingly seeks the assistance of a physician and the physician knowingly accepts him as a patient.” Id. (quotation marks omitted). “Whether the law recognizes a particular duty is an issue of law to be determined by the court.” Ellis ex rel. Ellis v. Niles, 324 S.C. 223, 227, 479 S.E.2d 47, 49 (1996). If a duty does not exist, the defendant in a negligence action is entitled to a directed verdict. Id. Although the court must determine whether the law recognizes a duty, “[t]he existence of a physician-patient relationship is a question of fact for the jury.” Fuller v. Blanchard, 358 S.C. 536, 546, 595 S.E.2d 831, 836 (Ct.App.2004) (quotation marks omitted).
In Roberts, our supreme court first considered whether a doctor-patient relationship may exist when the patient has not been examined or treated by the doctor. 310 S.C. at 366–68, 426 S.E.2d at 799–800. After summarizing several cases from other jurisdictions,6 the...
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