Linog v. Yampolsky

• Decision Date: 14 January 2008
• Docket Number: No. 26419.,26419.
• Citation: 376 S.C. 182,656 S.E.2d 355
• Parties: Nitus Joanne LINOG, Appellant, v. Mark YAMPOLSKY, D.D.S., and Eloise Bradham, M.D., Respondents.
• Court: South Carolina Supreme Court

656 S.E.2d 355

376 S.C. 182

Nitus Joanne LINOG, Appellant, v. Mark YAMPOLSKY, D.D.S., and Eloise Bradham, M.D., Respondents.

No. 26419.

Supreme Court of South Carolina.

Heard October 17, 2007.

Decided January 14, 2008.

Brooks Roberts Fudenberg, of Charleston, and Geoffrey H. Waggoner, of Mt. Pleasant, for Appellant.

Andrew Steven Halio, of Halo & Hallo, of Charleston, for Respondent Mark Yampolsky.

Todd W. Smyth and Neil D. Thomson, both of Haynsworth Sinkler Boyd, of Charleston, for Respondent Eloise Bradham.

Marvin D. Infinger and Lydia B. Applegate, both of Haynsworth Sinkler Boyd, of Charleston, for Amicus Curiae South Carolina Medical Association.

Chief Justice TOAL.

This is an appeal from a grant of summary judgment in favor of Respondents Dr. Mark Yampolsky and Dr. Eloise Bradham as to Appellant Nitus Linog's ("Appellant") claim for medical battery. Appellant based her claim on her purported revocation of consent to a dental procedure during the surgery and while under anesthesia. The trial court found no South Carolina precedent recognizing medical battery based on withdrawal of consent, but ruled that even if South Carolina law permitted such a cause of action, Appellant failed to provide any expert testimony. Because we hold that no cause of action exists for medical battery in South Carolina, we affirm.

FACTUAL/PROCEDURAL BACKGROUND

After several consultations, Dr. Yampolsky, a periodontist, recommended that Appellant receive osseous gum surgery, a highly invasive dental procedure. The procedure was scheduled to last approximately four hours and include all four quadrants of Appellant's mouth. Due to her extraordinary fear of dentists, Appellant elected to undergo the procedure with intravenous sedation. Dr. Bradham, an anesthesiologist, administered a combination of four anesthetic agents prior to and during the procedure. However, Dr. Bradham's attempt to sedate Appellant was not entirely successful, and the record reveals that Appellant would turn her head and mumble throughout surgery. As a result, Dr. Yampolsky decided to terminate the procedure after three and a half hours and with only one quadrant completed.

Appellant filed a medical malpractice action against Drs. Yampolsky and Bradham, alleging that she suffered a herniated disc during the procedure. Discovery in the action proceeded, and in depositions, both doctors testified that during the procedure, Appellant continued to intermittently move her head and otherwise disrupt the procedure, thereby making the surgery more difficult to complete. Appellant then amended her complaint to include a cause of action for medical battery, contending that the doctors' deposition testimonies showed that she withdrew her consent during the procedure.

Subsequently, Respondents filed a motion for summary judgment as to both causes of action. The trial court granted the motion as to the medical malpractice claim based solely on the fact that Appellant failed to identify an expert witness who would testify to support her claim. Additionally, the trial court granted summary judgment as to the medical battery claim. Specifically, the trial court found no legal precedent in South Carolina allowing a claim for medical battery based on a patient's withdrawal of consent. The court alternatively held that even if South Carolina recognized such a claim, Appellant failed to provide expert testimony establishing the relevant standard of care and showing that Appellant withdrew her consent.

We certified this case pursuant to Rule 204(b), SCACR, and Appellant raises the following issue for review:

Did the trial court err in granting summary judgment regarding Appellant's medical battery claim?

STANDARD OF REVIEW

Summary judgment is appropriate where there is no genuine issue of material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994). The mere fact that a case involves a novel issue does not render summary judgment inappropriate. Houck v. State Farm Fire Cas. Ins. Co., 366 S.C. 7, 11, 620 S.E.2d 326, 329 (2005).

LAW/ANALYSIS

Appellant argues that South Carolina should recognize a medical battery claim based on revocation of consent and that expert testimony should not necessarily be required in proving such claim. We disagree.

South Carolina courts have specifically addressed issues involving informed consent in the context of medical care. In Hook v. Rothstein, the court of appeals explicitly held that lack of informed consent cases fall under the medical malpractice framework. 281 S.C. 541, 553, 316 S.E.2d 690, 698 (Ct.App. 1984) (holding a patient must show that, based on expert testimony of the standard of care, the physician provided insufficient information to enable the patient to make an intelligent and informed decision). Additionally, in Harvey v. Strickland, 350 S.C. 303, 312, 566 S.E.2d 529, 534 (2002), we held that South Carolina recognizes a medical malpractice claim stemming from lack of informed consent.

On the other hand, although not entirely foreign to South Carolina jurisprudence, our courts have not explored medical battery as thoroughly. In Hook, the court of appeals mentioned medical battery and explained "the battery theory is applicable either where the physician performs a procedure to which the patient has not consented or where the patient gives permission to perform one type of procedure and the physician performs another." Hook, 281 S.C. at 558, 316 S.E.2d at 700-01. Similarly, in both Harvey v. Strickland and Banks v. Medical University of South Carolina, we reversed the trial court's grant of summary judgment as to the patients' medical battery claims and noted that "we have recognized that there may be a viable cause of action for medical battery as the result of failing to obtain proper consent." Harvey, 350 S.C. at 312, 566 S.E.2d at 534 (citing Banks, 314 S.C. 376, 444 S.E.2d 519 (1994),).

Turning to the instant case, we must determine whether South Carolina should recognize a separate and independent cause of action for medical battery, or whether such theories of liability are more properly analyzed under alternative and well-established causes of action.

Under our jurisprudence, an injured patient may...