Gattis v. Chavez

• Decision Date: 05 January 1976
• Docket Number: Civ. A. No. 74-425.
• Citation: 413 F. Supp. 33
• Parties: Allen C. GATTIS, Plaintiff, v. Marcelino CHAVEZ, M. D., Defendant.
• Court: U.S. District Court — District of South Carolina

413 F. Supp. 33

Allen C. GATTIS, Plaintiff, v. Marcelino CHAVEZ, M. D., Defendant.

Civ. A. No. 74-425.

United States District Court, D. South Carolina, Spartanburg Division.

January 5, 1976.

Ellis I. Kahn of Solomon, Solomon, Kahn & Roberts, Charleston, S. C., Robert E. Corry, Jr., of Dennis & Fain, Atlanta, Ga., for plaintiff.

G. Dewey Oxner, Jr., of Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, S. C., for defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HEMPHILL, District Judge.

Defendant in this medical malpractice action has moved for summary judgment on the ground that the South Carolina statute of limitations¹ bars recovery. The plaintiff, who admittedly failed to file his complaint within six years of either the alleged misdiagnosis or the date of his last treatment by the defendant, contends that the statute is not a bar because suit was instituted within six years of the date upon which the alleged malpractice was discovered.

The relevant facts, about which there is no substantial dispute, reveal that the plaintiff, who is a resident and citizen of Georgia, commenced this action on April 4, 1974, by filing his complaint in this court. The complaint alleges acts of negligence on the part of the defendant physician, who, at the time of the alleged negligent acts, was practicing neurosurgery at the Medical College of Georgia in Augusta. All of the acts of negligence in alleged diagnosis and treatment occurred in Georgia. In the fall of 1967 the defendant resigned his post at the Medical College of Georgia and moved to Spartanburg, South Carolina, where he opened up a practice in neurosurgery which continues to this time. For jurisdictional purposes, it is clear that diversity of citizenship exists.

Between January 3, 1966 and approximately August 31, 1967 the defendant did render neurosurgical treatment to the plaintiff, diagnosing and operating on what he considered a brain stem glioma. On April 5, 1972, plaintiff became aware that he was suffering from an acoustic neuroma (a slow-growing benign brain tumor), which resulted in severe injuries to him, the parties obviously do not agree on the legal significance of these facts, but the dates involved are not disputed.

It is elementary that a federal district court sitting in South Carolina must apply the substantive law of South Carolina in a diversity case, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including the forum's choice of law rules. Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In tort actions, the South Carolina Supreme Court has consistently adhered to the traditional lex loci delicti rule, thus applying the law of the state in which the alleged tort occurred. E. g. Algie v. Algie, 261 S.C. 103, 198 S.E.2d 529 (1973); Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303 (1964). The law of Georgia will therefore control the question of liability in this action.

Even where foreign law governs the existence of a right of action, however, the question of whether the statute of limitations bars a remedy in a given case is ordinarily a matter determined solely by the law of the forum. South Carolina has long followed this practice in contract actions, Sawyer, Wallace & Co. v. Macaulay, 18 S.C. 543 (1883); Alexander v. Burnet, 5 Rich. 189 (1851); Levy v. Boas, 2 Bailey 217 (1831), and the rationale for those decisions is equally applicable in tort actions, although the Supreme Court has not yet had occasion to state that principle directly. Since a statute of limitations serves to protect both the parties and the local courts against the prosecution of stale claims, the only logical procedure is to allow the courts of each State to consult local law to determine which of the claims asserted there should be barred. See Restatement (Second) of Conflicts § 142 (1971). The law of Georgia, which is illustrative though obviously not controlling here, incorporates these same principles. Taylor v. Murray, 231 Ga. 852, 204 S.E.2d 747 (1974).

The South Carolina statute of limitations has been interpreted generally as affecting remedies rather than rights of action, Webb v. Greenwood County, 229 S.C. 267, 92 S.E.2d 688 (1956), and the provision involved here, S.C.Code § 10-143(5), is of broad application and certainly not so intimately connected with the statutory exposition of any right of action that noncompliance with its time limits could be said to extinguish both remedy and right simultaneously. See generally Restatement (Second) of Conflicts §§ 142-43 (1971). Moreover, a South Carolina statute of limitations is one of grace, permitting avoidance of liability, and it must be pleaded and becomes an affirmative defense with the burden of establishing it on the defendant. South Carolina Mental Health Comm. v. May, 226 S.C. 108, 83 S.E.2d 713 (1954).

It is undisputed that the applicable South Carolina statute of limitations is Section 10-143(5) which, in conjunction with Section 10-102, directs that a personal injury action such as this must be brought within six years "after the cause of action shall have accrued." Both the alleged misdiagnosis and the last treatment of the plaintiff by the defendant occurred more than six years prior to the filing of this action on April 4, 1974. If the cause of action is deemed to have accrued on either of those dates, the action is barred and defendant is entitled to summary judgment. Plaintiff contends, however, that the cause of action did not accrue until the discovery of the alleged malpractice occurred on April 5, 1972. If this view is correct, the action is not barred and the motion for summary judgment must be denied. The single, controlling question in the decision of defendant's motion is therefore when, under the law of South Carolina, a cause of action for medical malpractice can be considered to have accrued.

Although the South Carolina statutes establish specific time limitations on the maintenance of many different types of actions, they are generally silent on the question of when a cause of action accrues. It is true that Sections 10-143(7) (actions for fraud), 10-143(9) (actions against corporate directors and stockholders), and 10.2-725 (actions for breach of warranty) direct that certain causes of action accrue and the statute of limitations begins to run only when the plaintiff discovers, or reasonably should have discovered, the particular act which gives rise to his action. Other sections, however, including the one applicable here, are silent on this critical question. Thus, the legislature has omitted definition of an element essential to the proper application to the statute and it is the obligation of the courts to supply it.

The South Carolina Supreme Court has frequently discussed accrual of causes of action, but never in connection with Section 10-143(5). The explanation is perhaps that there can be little doubt in most personal injury actions about when the statute of limitations begins to run and that South Carolina's six-year limitation is far longer than that imposed in most other jurisdictions. A medical malpractice case in which discovery of the alleged malpractice may not occur for six years is undoubtedly rather rare.

Defendant places great reliance on Executors of Sinclair v. Bank of South Carolina, 2 Strob. (33 S.C.L.) 344 (1848), where the court held that when "an agent is sued for negligence, . . . the gist of the action is the negligence, and the Statute of Limitations begins to run from the time of the negligence, and not from the time of the loss thereby occasioned." Id. at 345. Sinclair, however, dealt with the breach of an agent's duties; contemporary medical malpractice actions involve entirely different policies which could not have been considered in that 1848 decision. Additionally, the quoted language was dictum; the court held that the negligence and loss occurred simultaneously, so there could be no dispute as to when the cause of action accrued.

In Livingston v. Sims, 197 S.C. 458, 15 S.E.2d 770 (1941), the South Carolina Supreme Court stated:

A cause of action, as defined with reference to its elements, consists of a primary right of plaintiff, a corresponding duty of the defendant, and a wrong by the defendant in breach of such right and duty.

It follows that a cause of action for damages is not on the one hand the damage suffered by plaintiff, nor on the other hand the mere evidentiary facts showing the defendant's wrong; but it is the wrong itself done by defendant to plaintiff, that is, the breach of duty by the defendant to the plaintiff, whether it is the duty arising out of a contract or of tort. Every violation of a legal right imports damage and authorizes the maintenance of an action and the recovery of at least nominal damages, regardless of whether any actual damage has been sustained.

Id., 15 S.E.2d at 772 (citations omitted). The gist of the quoted language is that the breach, and not the consequential damages, is the controlling factor in determining when the statutory period begins to run. See also Brown v. Finger, 240 S.C. 102, 124 S.E.2d 781 (1962) (action by husband for loss of consortium).

The language relating to "tort" is once again pure dicta, since the decision was clearly made with reference to a cause of action based on contract; the court even dismissed one case cited by the losing party on the grounds that it "has nothing to do with contract". 15 S.E.2d at 773. While a breach of contract action may accrue when the breach occurs, such a rule of law and the general authority cited to support it cannot be used to compel the conclusion that a medical malpractice action cannot accrue at the time the malpractice is discovered.

Defendant also relies upon Thomas v. Ervin, Cheves 22 (S.C.1839), which involved a suit against an attorney whose negligent delay had caused a debt to become uncollectible. The court held that the cause of action...