James v. Lister

Decision Date11 May 1998
Docket NumberNo. 2843.,2843.
CourtSouth Carolina Court of Appeals
PartiesTimothy W. JAMES and Brenda James, Respondents, v. Debra B. LISTER, M.D., The Emergency Medicine Specialists of Conway Hospital, P.A., James C. Hughes, III, M.D., Coastal Surgical, P.A., and Conway Hospital, Inc., Defendants, of whom Conway Hospital, Inc., is, Appellant.

John B. McCutcheon, Jr., of McCutcheon, McCutcheon & Baxter, Conway; and Stephen P. Groves, J. Rutledge Young, Jr., and Stephen L. Brown, all of Young, Clement, Rivers & Tisdale, Charleston, for appellant.

Glenn V. Ohanesian, of Ohanesian & Ohanesian, Myrtle Beach; and O. Fayrell Furr, of Furr & Henshaw, Myrtle Beach, for respondents.

HOWARD, Judge:

This case arises from the trial of a medical negligence action brought by Timothy and Brenda James (the Jameses) which resulted in a $1,500,000 jury verdict against Conway Hospital (Conway). Conway appeals the post trial denial of their motion to alter or amend judgment to conform to the statutorily mandated recovery cap for charitable organizations of $200,000 set by S.C.Code Ann. § 33-55-210 (1990).1 Conway also appeals the admission of expert testimony regarding future damages and the trial court's denial of Conway's motion for directed verdict. We affirm.

FACTS

On February 3, 1989, Timothy James (James) sustained multiple injuries in a single car accident. Horry County EMS immobilized James at the scene of the accident and transported him to Conway Hospital. James was uncooperative with the medical personnel, and could not be subdued by the administration of Valium. Because of his agitated state, Dr. Lister could not determine from x-rays whether James had a spine injury. Dr. Lister consulted with Dr. Hughes, who made several recommendations for James's care. Dr. Hughes also ordered that more x-rays be taken the following morning. During the night, a nurse assigned to James determined he was not moving his legs. She did not notify a doctor of this observation. An orthopaedic surgeon viewed the x-rays taken the next morning and determined James had a broken neck. James was then transported to McLeod Regional Medical Center in Florence. Upon his arrival, a doctor found him to be a quadriplegic.

James sued the doctors, Emergency Medicine Specialists of Conway Hospital, Coastal Surgical, and Conway Hospital for medical malpractice. Brenda James (Brenda) also sued for loss of consortium. Neither joined the nurse as a defendant. At the close of the trial, the jury found Dr. Lister, Dr. Hughes, Emergency Medicine Specialists of Conway Hospital, and Coastal Surgical free of liability. The jury rendered a verdict against Conway Hospital for $1,000,000 to James and $500,000 to Brenda. Conway then moved to alter or amend the judgment to conform to S.C.Code Ann. § 33-55-210(A), which provides a liability limit of $200,000, asserting for the first time that it was a charitable hospital. Conway also moved for judgment notwithstanding the verdict (jnov), new trial, and new trial nisi remittitur.

ISSUES
I. Is the limitation on liability afforded by section 33-55-210(A) an affirmative defense which must be pled prior to trial?
II. Did the trial court err in denying Conway's motion to amend its answer in order to assert the limitation of liability for charitable institutions?
III. Did the trial court err in denying Conway's directed verdict motion based on the plaintiffs failure to show proximate cause?
IV. Did the trial court err in admitting expert testimony as to future damages?
LAW/ANALYSIS
I. LIMITATION ON LIABILITY AS AN AFFIRMATIVE DEFENSE

Conway first argues the trial court erred in holding that the limitation on liability afforded by section 33-55-210(A) is an affirmative defense which must be pled. The trial court reasoned that the plaintiff would be prejudiced by allowing Conway to assert its charitable organization status after the verdict. We agree that the Jameses were prejudiced by Conway's failure to plead the recovery limit and affirm the trial court.

Section 33-55-210(A) provides a limit on recovery of $200,000 for charitable organizations. The section also bars recovery against the employees of charitable organizations whose acts give rise to the claim against the organization. However, the statute states an employee may be held liable if:

it is alleged and proved in the action that the employee acted in a reckless, wilful, or grossly negligent manner, and, in such case, the employee must be properly joined as a party defendant. No judgment against an employee of a charitable organization may be returned unless a specific finding is made that the employee acted in a reckless, wilful, or grossly negligent manner.

S.C.Code Ann. § 33-55-210(A) (1990).

Conway argues that charitable status is not an issue properly tried to a jury, and therefore, the Jameses were not legally prejudiced by Conway's failure to so plead. We disagree. Although charitable status is not a jury issue, the invocation of this protection triggers alternative remedies for the injured plaintiff. Section 33-55-210(A) provides a mechanism for seeking damages in excess of the charitable limitation, through an action against a charitable organization's employees. In such instances, the statute specifically requires joinder of the employee as a party, and a special finding by the jury that the employee was proved guilty of gross negligence as a proximate cause of the injury. Indirectly, then, Conway's failure to raise its charitable status as an affirmative defense affected both the parties to the action and the manner in which the case was tried to the jury, including what issues were or were not presented to them for resolution.

This case demonstrates clearly how the charitable status defense affects the trial of the case to the jury. The Jameses had no notice that another party was necessary and that they would be required to prove a greater degree of negligence in order to recover damages in excess of $200,000. We therefore conclude that section 33-55-210(A) constitutes an affirmative defense which must be pled or waived, as required by Rule 8(c), SCRCP.

Previous South Carolina cases support this requirement of pleading matters which may prejudice the opposing party by introducing issues which may affect the proof at trial. In the case of Washington v. Whitaker, 317 S.C. 108, 451 S.E.2d 894 (1994), our supreme court held that sovereign immunity must be affirmatively pled. Similarly, in the case of Niver v. South Carolina Dep't of Highways and Public Transp., 302 S.C. 461, 395 S.E.2d 728 (Ct.App.1990), this court held, under the South Carolina Tort Claims Act (SCTCA), "[t]he burden of establishing a limitation upon liability or an exception to the waiver of immunity is upon the governmental entity asserting it as an affirmative defense." Id. at 463, 395 S.E.2d at 730.

Conway argues that these cases are distinguishable from the case at bar because both the SCTCA and sovereign immunity act as complete bars to a party's recovery. This argument mischaracterizes the law as applied in these cases. In Washington, sovereign immunity was asserted as a defense to punitive damages. Washington v. Whitaker, 317 S.C. 108, 451 S.E.2d 894 (1994) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) (holding that a municipality is immune from punitive damages)). Immunity from punitive damages cannot be characterized as a complete bar to a plaintiff's claim. This reasoning also overlooks the fact that by limiting the plaintiff to actual damages, the immunity from punitive damages affects the manner in which the case is tried to the jury.

As to the SCTCA, though it potentially acts as a bar to a plaintiff's claim, it also "provide[s] for liability on the part of the State, its political subdivisions, and employees, while acting within the scope of official duty, only to the extent provided" within the Act. S.C.Code Ann. § 15-78-20 (Supp. 1997). Therefore, the SCTCA acts as a bar to a plaintiff's claim in certain circumstances, but also may act as a limit on liability in other circumstances. The cases requiring the SCTCA to be pled as an affirmative defense do not differentiate between claims in which the defense may act as a complete bar and claims in which the defense merely limits liability. See Rakestraw v. South Carolina Dep't of Highways and Pub. Trans., 323 S.C. 227, 473 S.E.2d 890 (Ct.App.1996)

; Niver v. South Carolina Dep't of Highways and Public Transp., 302 S.C. 461, 395 S.E.2d 728 (Ct.App.1990).

Conway argues that we should adopt the reasoning from other jurisdictions which do not require a limit on immunity to be pled as an affirmative defense. However, our research indicates that only a few cases in other jurisdictions hold a statutorily mandated recovery limit which requires additional proof at trial does not constitute an affirmative defense.2 A far greater number of jurisdictions have concluded either that 1) a limit on recovery must be plead as an affirmative defense or 2) a recovery limit could constitute an affirmative defense if the limit affects proof at trial.3 Given the current holdings in Washington, Niver, and Rakestraw, we believe the view which requires the pleading of liability limits that affect proof at trial is consistent with South Carolina law. Finally, Conway argues that Broome v. Watts, 319 S.C. 337, 461 S.E.2d 46 (1995) is dispositive of the issue of whether the recovery limit established by section 33-55-210(A) is an affirmative defense. We disagree.

In Broome, the plaintiffs sued the defendant for personal injury arising out of an automobile wreck. The plaintiffs received a settlement of $50,000 from the defendant's insurance company. The plaintiffs proceeded to trial under their underinsured motorist insurance. At trial, the jury awarded the plaintiffs $97,500. The trial court set off...

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