Fletcher v. Med. Univ. Of South Carolina

Decision Date01 September 2010
Docket NumberOpinion No. 4732
PartiesFaye Fletcher, Appellant, v. Medical University of South Carolina, Respondent.
CourtSouth Carolina Court of Appeals

James H. Moss, of Beaufort, for Appellant.

M. Dawes Cooke, Jr., and Lucinda Gardner Wichmann, both of Charleston, for Respondent.

Appeal From Charleston County

R. Markley Dennis, Jr., Circuit Court Judge



FayeFletcher appeals the circuit court's granting of a directed verdict in favor of the Medical University of South Carolina (MUSC) on her claims for medical malpractice. We affirm in part, reverse in part, and remand.


Fletcher suffered from a blockage in the artery leading to her left arm. As a result, she was experiencing dizziness and numbness in the arm. Fletcher had seen Dr. Bruce Elliott about this issue, and he ordered some tests suspecting that a subclavian bypass could alleviate the problem. When the test results were received, Dr. Thomas Brothers, Dr. Elliott's partner, was in their Beaufort clinic where Fletcher was seen. Dr. Brothers testified he discussed the surgery with Fletcher although he could not specifically recall the content of that discussion. Fletcher scheduled her surgery so that it did not conflict with her work schedule and that resulted in Dr. Brothers performing the operation. Fletcher had a preoperative appointment at which time she spoke with a nurse practitioner and the anesthesiologist. She testified she was never warned of the risks associated with the procedure. Fletcher underwent the surgery on October 28, 1999. Dr. Gloria Rios, a surgical resident, assisted.1

Upon returning home, Fletcher experienced significant bloating, discomfort, and shortness of breath. After two days, she went to the area emergency room where it was discovered that chylothorax was leaking into her pleural cavity and her diaphragm was not functioning properly. One treating physician indicated these problems were likely a result of her recent surgery in which damage to the thoracic artery and phrenic nerve are possible complications. Fletcher was treated and did make improvements although she still suffers from significant fatigue that she testified she did not experience prior to the surgery.

Fletcher brought this medical malpractice claim against MUSC alleging Dr. Brothers and Dr. Rios were negligent in performing the surgery and she was not properly advised of the risks associated with subclavian bypass. At trial, Dr. Thomas Wood testified on Fletcher's behalf and stated he believed Drs. Brothers and Rios had deviated in the standard of care during Fletcher's surgery and that as a physician, he thought it was a good idea to advise patients of the risks associated with medical procedures. Dr. Thomas Appleby testified as an expert for MUSC and opined he did not believe Drs. Brothers and Rios had deviated from the standard of care in performing Fletcher's operation and that it was the standard of care to advise patients of the risks associated with any surgical procedure. Fletcher testified she would not have undergone subclavian bypass had she known the procedure was not guaranteed to resolve her symptoms and that it could turn out the way it did. The circuit court granted a directed verdict in favor of MUSC on both claims, and this appeal followed.


"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). On review, an appellate court will affirm the granting of a directed verdict in favor of the defendant when there is no evidence on any one element of the alleged cause of action. Id. "In a medical malpractice action, the plaintiff must establish proximate cause as well as the negligence of the physician." Id.

I. Medical Malpractice – Negligence in Performance of Procedure

Fletcher argues the circuit court erred in granting MUSC's directed verdict motion when Dr. Wood opined Dr. Brothers and Dr. Rios deviated from the standard of care in performing her surgery. We disagree.

In a medical malpractice action the plaintiff must establish "(1) 'the generally recognized practices and procedures which would be exercised by competent practitioners in a defendant doctor's field of medicine under the same or similar circumstances, ' and (2) a departure by the defendant 'from the recognized and generally accepted standards, practices and procedures....'" Jones v. Doe, 372 S.C. 53, 61, 640 S.E.2d 514, 518 (Ct. App. 2006) (quoting Cox v. Lund, 286 S.C. 410, 414, 334 S.E.2d 116, 118 (1985)). Furthermore the plaintiff must present evidence that the defendant's failure to adhere to the standard of care proximately caused the complained of injury. Id. "The probative value of expert testimony stands or falls upon an evidentiary showing of the facts upon which the opinion is, or must logically be, predicated." Ward v. Epting, 290 S.C. 547, 563, 351 S.E.2d 867, 876 (Ct. App. 1986).

In the present case, Dr. Wood testified the standard of care in a subclavian bypass surgery is to preserve the phrenic nerve and thoracic duct. With respect to MUSC's deviation from the standard of care, he opined:

Q. Do you have an opinion, Doctor, as to whether or not Dr. Brothers and Dr. Rios, the agents of MUSC, in performing this surgery deviated from the standard of care?
A. I think so. I think they did.

However, Dr. Wood testified on cross-examination that complications such as trauma to the phrenic nerve and damage to the thoracic duct could have occurred during this procedure even in the absence of any surgical negligence. He also testified:

Q. Do you see anything in there [the operative note and records] that indicates that Dr. Brothers used any improper technique to do this operation?
A. No.

Essentially, Fletcher asks us to conclude that the occurrence of a complication is itself evidence of negligence. However, South Carolina does not recognize the doctrine of res ipsa loquitur. Snow v. City of Columbia, 305 S.C. 544, 555 n.7, 409 S.E.2d 797, 803 n.7 (Ct. App. 1991) ("In an action for negligence, the plaintiff must prove by direct or circumstantial evidence that the defendant did not exercise reasonable care. South Carolina's rejection of res ipsa loquitur is consistent with its general adherence to fault based liability in tort."). Simply no evidence establishes how Dr. Brothers or Dr. Rios deviated from the standard of care. Unfortunately, two of the risks associated with this procedure did befall Fletcher. Nevertheless, we are not permitted to speculate that misfortune was the result of negligence in the absence of any evidence as to how the physicians deviated from the standard of care.

Bowie v. Hearn, 292 S.C. 223, 355 S.E.2d 550 (Ct. App. 1987) (Bowie I), addresses this very point. This case was reversed based on the particular facts presented, but the reasoning employed by the court of appeals is instructive. Bowie sued the physician who delivered him via cesarean section because he was cut on the cheek during the procedure, resulting in a scar. Id. at 224-25, 355 S.E.2d at 551. Bowie's expert testified the standard of care required the physician not to cut the baby. Id. at 226, 355 S.E.2d at 552. In analyzing the sufficiency of this testimony, the court alluded to another oft-cited medical malpractice case and stated:

Under the plaintiff's reasoning in this case [Bowie I] the doctors in Cox2 could simply have testified that normally colons are not perforated during colonoscopies, the standard of care, therefore, is a doctor should not perforate the colon, and to do so violates the standard of care. Such reasoning would, in effect, make a doctor an insurer of perfect result in every surgical procedure. A doctor is not an insurer of health and negligence may not be inferred.

Id. at 227, 355 S.E.2d at 552.3

The analysis in Bowie I is precisely on point with this case, and we discern no factual basis that would cause the reasoning in that case to be inapplicable to the facts presented here. Therefore, we affirm the circuit court's granting of a directed verdict as Fletcher presented no evidence, only speculation, that MUSC's agents deviated from the standard of care.

II. Medical Malpractice – Lack of Informed Consent

Fletcher also contends the circuit court erred in granting MUSC's directed verdict motion with respect to her informed consent claim. We agree.

Although the circuit court's decision rested on its conclusion that Fletcher failed to present any evidence regarding proximate cause, we will address the elements of duty and breach first as they are preconditions to a finding of proximate cause, and MUSC raises them as additional sustaining grounds.4

Under the doctrine of informed consent, a physician has a duty to disclose "(1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not carried out, and (6) the existence of any alternatives to the procedure." Hook v. Rothstein, 281 S.C. 541, 547, 316 S.E.2d 690, 694-95 (Ct. App. 1984). Because the question of whether a physician has acted unreasonably often involves the exercise of medical judgment in most cases, expert medical testimony is necessary to establish negligence in failing to adequately disclose the information necessary for a patient to give informed consent. Id. at 551, 316 S.E.2d at 697. "Indeed, our [s]upreme [c]ourt has held that in any 'area beyond the realm of ordinary lay knowledge, expert testimony will usually be necessary to establish both the standard of care and the defendant's departure therefrom.'" Id. (quoting Kemmerlin v. Wingate, 274 S.C. 62, 65, 261 S.E.2d 50, 51 (1979)).

In the instant case, Fletcher provided a modicum of expert testimony that MUSC's...

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