Harrison v. Bevilacqua, 25631.

• Decision Date: 28 April 2003
• Docket Number: No. 25631.,25631.
• Citation: 580 S.E.2d 109,354 S.C. 129
• Court: South Carolina Supreme Court
• Parties: Patricia L. HARRISON, as Guardian ad Litem for her Ward, James Lennon McLean, Jr., Petitioner, v. Joseph J. BEVILACQUA, Jaime E. Condom, Betty R. Guerry and South Carolina Department of Mental Health, Respondents.

354 S.C. 129

580 S.E.2d 109

Patricia L. HARRISON, as Guardian ad Litem for her Ward, James Lennon McLean, Jr., Petitioner, v. Joseph J. BEVILACQUA, Jaime E. Condom, Betty R. Guerry and South Carolina Department of Mental Health, Respondents.

No. 25631.

Supreme Court of South Carolina.

Heard September 19, 2002.

Decided April 28, 2003.

Arthur K. Aiken, of Hammer, Hammer, Carrigg & Potterfield; and Rebecca M. Monroy, of Collins and Lacy, P.C., both of Columbia, for Petitioner.

Andrew F. Lindemann and William H. Davidson, II, of Davidson, Morrison, & Lindemann, P.A., of Columbia; for Respondents.

Justice WALLER:

Petitioner Patricia Harrison, guardian ad litem for James Lennon McLean, Jr. (McLean), sued respondent South Carolina Department of Mental Health (the Department) for professional negligence.¹ The jury found in favor of petitioner but awarded damages in the amount of only $1.00. Petitioner appealed, and in an unpublished decision, the Court of Appeals affirmed. Harrison v. Bevilacqua, Op. No.2000 UP 441 (S.C. Ct.App. filed June 13, 2000). We granted the petition for a writ of certiorari to review the Court of Appeals' decision, and we now affirm.

FACTS

McLean is a diagnosed schizophrenic. He was involuntarily committed to Crafts-Farrow State Hospital (run by the Department) in 1982. He remained in the Department's continuous care until his discharge on March 6, 1995. While in the hospital, McLean resided in a locked ward. He had a very small room, but it was locked during the day. McLean had lobby privileges, but he declined yard privileges.

One day while in the hospital lobby, McLean saw some representatives from an organization called Protection and Advocacy for the Handicapped. He told them he wanted to be discharged so they became involved in his case. In 1994, after being contacted by Protection and Advocacy, petitioner was appointed guardian ad litem for McLean. In March 1994, all parties agreed at a probate court hearing that McLean could be released from the Department's care pending a home study. Eventually, McLean did go home where he has 24hour, one-on-one care.

While in the hospital, McLean's estate paid for his care. At the time of the probate court hearing in 1994, McLean's assets, both cash and real estate, were valued at over $1 million.

At trial, petitioner attempted to prove that the Department had been negligent because McLean: (1) had been confined in the hospital too long; (2) should not have resided in a locked ward; and (3) had been improperly medicated. In her complaint, which was filed on June 1, 1995, petitioner alleged that the Department should have discharged McLean as early as October 1983. Other allegations included that the Department failed to follow its own Level of Care reports which, at various times, recommended McLean's transfer to an open ward or a community facility or his home.

There was conflicting expert testimony on the allegations of negligence. Regarding damages, petitioner presented undisputed evidence of how much McLean paid the Department for his care.² McLean did not testify, and there was no evidence admitted regarding mental anguish or pain and suffering. The jury found in favor of petitioner but only awarded $1.00 in damages. The trial court denied petitioner's motions for a new trial nisi additur, JNOV, or new trial absolute. On appeal, the Court of Appeals affirmed.

ISSUES

1. Should the Court adopt the continuous treatment rule or the doctrine of continuing tort to determine that Mc-Lean's causes of action accrued when his treatment ended on March 6, 1995, his discharge date?

2. Did the Court of Appeals err in affirming the trial court's application of S.C.Code Ann. § 15-3-40, the tolling statute for disability?

3. Did the Court of Appeals err in affirming the denial of petitioner's motion for a new trial absolute based upon the $1.00 verdict?

1. CONTINUOUS TREATMENT/CONTINUING TORT RULE

Petitioner asserts that McLean's claims are of a continuous character given the continuing treatment he received over a 13-year period. She therefore argues that this Court should adopt the continuous treatment rule, or the doctrine of continuing tort, to find McLean's causes of action accrued at the termination of his treatment by the Department, i.e., the date of discharge, March 6, 1995. Prior to trial, the Department moved for summary judgment on the basis of the statute of limitations. The Department argued that petitioner's allegations began in October 1983 yet the complaint was not filed until 1995, and therefore the action was time-barred. Petitioner contended that because this was a "continuous tort," or pursuant to the "continuous treatment rule," the statute did not begin to run until McLean was discharged. Alternatively, petitioner argued the tolling statute for disability, S.C.Code Ann. § 15-3-40 (Supp. 2001), would allow her to "go back at least five years from the date of filing ... in pursuing this claim." The trial court decided § 15-3-40 would apply; it therefore ruled petitioner could not present any evidence of negligence which occurred more than five years prior to the filing of the complaint. As a result, the only evidence of negligence presented at trial was related to events after June 1, 1990.

Petitioner's suit for negligence against the Department arises under the South Carolina Tort Claims Act; the applicable statute of limitations reads as follows in pertinent part: "Except as provided for in Section 15-3-40, any action brought pursuant to this chapter is forever barred unless an action is commenced within two years after the date the loss was or should have been discovered...." S.C.Code Ann. § 15-78-110 (Supp.2001). The statute, however, is tolled if the plaintiff is under a disability. See § 15-3-40. Section 15-3-40 provides:

If a person entitled to bring an action ... under Chapter 78 of this title ... is at the time the cause of action accrued either:

(1) within the age of eighteen years; or

(2) insane;

the time of the disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended:

(a) more than five years by any such disability, except infancy; nor (b) in any case longer than one year after the disability ceases.

§ 15-3-40 (emphasis added).

Neither the trial court nor the Court of Appeals stated exactly when petitioner's claims accrued. Petitioner argues that the proper date is March 6, 1995, when McLean's treatment by the Department ended. The Court of Appeals, however, declined to adopt the continuous treatment rule, or the continuing tort doctrine, stating that the power to adopt them "lies within the exclusive domain of our supreme court or legislature." Harrison, supra. The Court of Appeals upheld the trial court's application of section 15-3-40 and its decision "limiting [petitioner's] claims to the five years preceding the filing of her complaint." Id.

In Preer v. Mims, 323 S.C. 516, 476 S.E.2d 472 (1996), this Court recognized that the continuous treatment rule had been adopted "by a significant number of courts around the country." Id. at 519, 476 S.E.2d at 473. The rule can be summarized 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.

Id. (quoting David W. Louisell & Harold Williams, Medical Malpractice, § 13.02[3] (1996)); see also Anderson v. Short, 323 S.C. 522, 524-25, 476 S.E.2d 475, 476-77 (1996)

.

In both Preer and Anderson, the Court stressed that if the continuous treatment rule were adopted as the law in South Carolina, it would contain the discovery exception, as outlined above. Because in both those cases the discovery exception would have precluded the plaintiffs' claims, and thus they would not have benefited from the adoption of the continuous treatment rule, the Court expressly declined to adopt the rule. Id. The Department argues McLean likewise would not benefit from the rule because he should have discovered the alleged negligence. However, we agree with petitioner that it is not reasonable to expect McLean a diagnosed, institutionalized schizophrenic who has been adjudged to be incompetent—to have been able to discover negligent psychiatric treatment. Therefore, we are faced with the issue of whether to adopt the continuous treatment rule.

"There are a number of policy considerations behind the `continuous treatment' rule;"³ however, most often, application of the rule is justified by reasoning that, without such a rule, a plaintiff would be required to bring suit against his or her physician before treatment is even terminated. See, e.g., Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517, 519 (1993)

(noting "the most often stated rationale" for the rule is that "the patient should not be required to interrupt the treatment to bring suit against the physician because a statute of limitations is about to run."); Cooper v. Kaplan, 78 N.Y.2d 1103, 578 N.Y.S.2d 124, 585 N.E.2d 373, 374 (1991) ("The premise underlying the doctrine is that a plaintiff should not have to interrupt ongoing treatment to bring a lawsuit, because the doctor not only is in a position to identify and correct the malpractice, but also is best placed to do so."). Yet this justification would be undermined by the discovery exception to the rule, which would be part of the rule were we inclined to adopt it. See Preer, supra; Anderson, supra. Surely, a patient could only interrupt treatment if she had (or...