Marshall v. Dodds
| Decision Date | 04 May 2016 |
| Docket Number | Appellate Case No. 2014–001833.,No. 5403.,5403. |
| Parties | Virginia L. MARSHALL and Todd W. Marshall, Appellants, v. Kenneth A. DODDS, M.D., Charleston Nephrology Associates, LLC, Georgia Roane, M.D., and Rheumatology Associates, P.A., Respondents. |
| Court | South Carolina Court of Appeals |
Blake A. Hewitt and John S. Nichols, both of Bluestein Nichols Thompson & Delgado, LLC, of Columbia; J. Edward Bell, III, of Bell Legal Group, of Georgetown; and C. Carter Elliott, Jr., of Elliott & Phelan, LLC, of Georgetown, all for appellants.
James B. Hood, Robert H. Hood, H. Cooper Wilson, III, and Deborah H. Sheffield, all of Hood Law Firm, LLC, of Charleston; and Thomas R. Goldstein, of Belk Cobb Infinger & Goldstein, of Charleston, for respondents Kenneth A. Dodds, M.D. and Charleston Nephrology Associates, LLC.
James E. Scott, IV, D. Jay Davis, Jr., Perry M. Buckner, IV, Stephen L. Brown, and Russell G. Hines, all of Young Clement Rivers, LLP, of Charleston, for respondents Georgia Roane, M.D. and Rheumatology Associates, P.A.
WILLIAMS
, J.
In this medical malpractice case, Virginia and Todd Marshall (the Marshalls) appeal the circuit court's grant of summary judgment in favor of Dr. Kenneth A. Dodds; Charleston Nephrology Associates, LLC; Dr. Georgia Roane; and Rheumatology Associates, P.A. (collectively “Respondents”). The Marshalls argue the court erred in holding the statute of repose for a medical malpractice action begins to run after a medical professional's first alleged misdiagnosis. We reverse and remand.
FACTS/PROCEDURAL HISTORY
In February 2010, Virginia was diagnosed with Waldenström's macroglobulinemia
—or lymphoplasmacytic lymphoma —a rare form of blood cancer. Prior to this diagnosis, Virginia was treated by two physicians, Dr. Dodds and Dr. Roane, both of whom she alleges committed medical malpractice by failing to diagnose her cancer on multiple occasions.
On September 15, 2004, Virginia visited Dr. Dodds, a nephrologist, after complaining of proteinuria
, or increased protein levels in her urine. This visit marked the first time Dr. Dodds had evaluated Virginia since 1999. During this appointment, Dr. Dodds noted Virginia had a 24–hour urine test conducted on August 6, 2004, which revealed the protein levels in her urine were at 3.5 grams per day. At this point, Dr. Dodds did not order additional testing for Virginia's proteinuria. When Virginia visited Dr. Dodds again on November 14, 2004, she had no complaints and Dr. Dodds did not order additional testing for her proteinuria.
At a February 7, 2005 appointment, Dr. Dodds ordered that Virginia again receive a 24–hour urine test. On February 9, 2005, the test indicated Virginia's protein levels were at approximately 3.1 grams per day. Dr. Dodds did not order any further testing. During her last visit on September 5, 2005, Virginia's 24–hour urine test indicated the protein levels in her urine had increased to 4.2 grams per day. Dr. Dodds continued treatment for proteinuria
, but he did not administer any additional testing.
During the time she was seeing Dr. Dodds for her proteinuria
, Virginia was also under the care of Dr. Roane, a rheumatologist. In 2000, Dr. Roane diagnosed Virginia with mixed connective tissue disease (MCTD) and treated her for the suspected MCTD from 2000 to 2007. On April 29, 2005, while Dr. Roane was continuing treatment for MCTD, Virginia presented symptoms including elevated sedimentation rates, enlarged lymph nodes, proteinuria, fever, and chills. At an appointment on September 29, 2005, a 24–hour urine test indicated Virginia's protein levels increased from 3.5 to 4.2 grams per day from the previous year. Dr. Roane, however, did not order further testing.
As a result of the alleged failures to diagnose Virginia's cancer
during her treatments, the Marshalls pursued medical malpractice and loss of consortium actions against Dr. Dodds, Dr. Roane, and their respective practices. The Marshalls claimed Dr. Dodds was negligent in failing to recognize the signs and symptoms of elevated proteins in the urine and failing to order proper testing—including a urine protein electrophoresis test or a serum protein electrophoresis test— to determine if the type of protein in Virginia's urine was cancerous. Similarly, the Marshalls alleged Dr. Roane was negligent because she continued to misdiagnose Virginia's cancer
as MCTD at the April 29, 2005 appointment. The Marshalls also claimed Dr. Roane failed to order further testing for Virginia's increased protein levels when she was no longer under the care of her nephrologist, Dr. Dodds, on and after the September 29, 2005 appointment.
On February 7, 2011, the Marshalls contemporaneously filed a notice of intent to file suit (NOI), two expert witness affidavits, and a summons and complaint against Dr. Dodds and Charleston Nephrology Associates, LLC. Subsequently, the Marshalls contemporaneously filed an NOI, an expert witness affidavit, and a summons and complaint against Dr. Roane and Rheumatology Associates, P.A. on April 8, 2011. The circuit court granted the Marshalls' motions to consolidate the two cases for purposes of discovery and trial.
After the parties participated in discovery, Respondents filed separate motions for summary judgment. Respondents argued the statute of repose for medical malpractice actions—section 15–3–545(A) of the South Carolina Code
(2005)—barred the Marshalls' claims because they brought their action more than six years after Dr. Dodds and Dr. Roane's first alleged negligent omissions in failing to diagnose her cancer. In their motion, Dr. Dodds and his practice asserted the alleged first misdiagnosis, on September 15, 2004, occurred more than six years prior to the commencement of the action against them. Likewise, Dr. Roane and her practice contended the Marshalls' own expert opined Virginia's cancer would have been discoverable by Dr. Roane as early as February 2002—nine years before the commencement of the malpractice action.
On May 1, 2014, the circuit court granted Respondents' motions for summary judgment, holding the Marshalls' complaints were untimely because the statute of repose began to run after the first alleged misdiagnoses by Dr. Dodds and Dr. Roane. In reaching its conclusion, the court found Howell v. Zottoli, 302 Ga.App. 477, 691 S.E.2d 564 (2010)
, persuasive. In Howell, the Georgia Court of Appeals concluded “a later negligent act cannot serve as the new starting point of the statute of repose where the negligent act is merely the repeated failure to diagnose and treat a continuing though worsening condition.” 691 S.E.2d at 566
. The circuit court found the Marshalls pled multiple failures by Dr. Dodds and Dr. Roane to diagnose Virginia's cancer that was likely present throughout the course of their treatment. Therefore, relying upon Howell, the court reasoned Dr. Dodds and Dr. Roane's subsequent misdiagnoses were merely a continuation of their first misdiagnoses, not distinct acts of negligence that could serve as new trigger points for the statute of repose.
The Marshalls filed a motion to alter or amend judgment, and the circuit court denied their motion in a Form 4 order on August 7, 2014. This appeal followed.
STANDARD OF REVIEW
“An appellate court reviews a grant of summary judgment under the same standard applied by the [circuit] court pursuant to Rule 56, SCRCP
.” Lanham v. Blue Cross & Blue Shield of S.C., Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002). Rule 56(c), SCRCP, provides that summary judgment shall be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that ... no genuine issue [exists] as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “Determining the proper interpretation of a statute is a question of law, and th[e appellate c]ourt reviews questions of law de novo.” Lambries v. Saluda Cty. Council, 409 S.C. 1, 7, 760 S.E.2d 785, 788 (2014) (quoting Town of Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008) ).
LAW/ANALYSIS
The Marshalls argue the circuit court erred in holding the statute of repose for their medical malpractice claims began to run after Dr. Dodds and Dr. Roane's first alleged misdiagnoses. We agree.
385 S.C. 643, 655, 685 S.E.2d 814, 821 (Ct.App.2009) (quoting Georgia–Carolina Bail Bonds, Inc. v. Cty. of Aiken, 354 S.C. 18, 23, 579 S.E.2d 334, 336 (Ct.App.2003) ). “Words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation.” Sloan v. Hardee, 371 S.C. 495, 499, 640 S.E.2d 457, 459 (2007). “If, however, the language of the statute gives rise to doubt or uncertainty as to legislative intent, the construing court looks to the statute's language as a whole in light of its manifest purpose.” Ex parte Cannon, 385 S.C. at 655, 685 S.E.2d at 821. “The construing court may additionally look to the legislative history when determining the legislative intent.” Id.
“A statute of repose creates a substantive right in those protected to be free from liability after a legislatively-determined period of time.” Langley v. Pierce, 313 S.C. 401, 404, 438 S.E.2d 242, 243 (1993)
(quoting First United Methodist Church v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir.1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 107 L.Ed.2d 1020 (1990) ). “[A] statute of repose is typically an absolute time limit beyond which liability no longer exists and is not tolled for any reason because to do so would upset the economic balance...
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