Sherer v. James

• Decision Date: 03 June 1986
• Docket Number: No. 22628,22628
• Citation: 351 S.E.2d 148,290 S.C. 404
• Court: South Carolina Supreme Court
• Parties: John H. SHERER, as Administrator of the Estate of Scott Middleton Sherer, Respondent, v. Charles A. JAMES, M.D., Petitioner. . Heard

Page 148

351 S.E.2d 148

290 S.C. 404

John H. SHERER, as Administrator of the Estate of Scott Middleton Sherer, Respondent, v. Charles A. JAMES, M.D., Petitioner.

No. 22628.

Supreme Court of South Carolina.

Heard June 3, 1986.

Decided Nov. 17, 1986.

Charles E. Carpenter, Jr., and Donald V. Richardson, III, of Richardson, Plowden, Grier & Howser, Columbia, for petitioner.

O. Fayrell Furr, Jr., and Charles E. Henshaw, Jr., Columbia, for respondent.

NESS, Chief Justice:

We granted certiorari to review the decision of the Court of Appeals reported at 286 S.C. 304, 334 S.E.2d 283 (Ct.App.1985). We reverse and reinstate the jury verdict in favor of petitioner James.

On a Wednesday evening, twelve-year-old Scott Sherer ¹ developed abdominal pain after playing basketball. Scott's mother telephoned James, Scott's pediatrician, who attributed the pain to a pulled muscle and prescribed aspirin. Later that night, Scott's mother again telephoned James because Scott was nauseated and his pain had not diminished. James prescribed paregoric. Thursday morning, James called Scott's mother to inquire as to Scott's condition, which was unchanged. On Friday morning, one of Scott's testicles appeared swollen. Scott's mother took him to James' office, where James discovered torsion of Scott's testicle. James referred Scott to a urologist who surgically removed the testicle that day.

Scott brought suit against James, alleging negligence in the delay in diagnosing Scott's condition. At trial, an expert testified that, had the torsion been diagnosed Wednesday night, there would have been better than fifty percent chance of saving the testicle. Scott requested a jury charge which read:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of another's person ... is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if his failure to exercise such care increases the risk of such harm.

The trial judge denied the request, finding his general charge "covered it." After extended deliberations, during which the jury requested additional instructions several times, a verdict was returned in favor of James. Scott appealed, raising four issues.

The Court of Appeals reversed and remanded for a new trial. It held the requested charge was "a correct principle of law" and was embraced by the pleadings and proof. Scott had argued, and the Court of Appeals held, that the requested charge was critical to the issue of proximate cause in a medical malpractice case. The court reasoned that the failure to give the requested charge was prejudicial because causation was the "critical issue in the case." 334 S.E.2d at 285. In its order on rehearing, the Court of Appeals suggested the charge was a factor in defining a physician's standard of care rather than proximate cause. We granted certiorari to address this novel issue. ²

The requested charge is taken essentially verbatim from RESTATEMENT [SECOND] OF TORTS Section 323(a) (1965). Traditionally, this section of the Restatement was read to define the scope of a defendant's duty to rescue. Cf., Slater v. Illinois Central R.R. Company, 209 F. 480 (M.D.Tenn.1911). At common law, when there is no duty to act but an act is voluntarily undertaken, the actor assumes a duty to use due care. See, e.g., Roundtree Villas Association, Inc. v. 4701 Kings Corporation, 282 S.C. 415, 321 S.E.2d 46 (1984).

The application of Section 323(a) as a standard of proof for causation originated in Hamil v. Bashline, 224 Pa.Super. 407, 307 A.2d 57 (1973). There, the Pennsylvania Superior Court held that when proof of a causal connection cannot meet the common law standard, a medical malpractice plaintiff must rely on Section 323, which allows the issue of proximate cause to reach the jury on a showing of increased risk. 307 A.2d at 62. The Hamil rule reduces the burden of proof to which a medical malpractice plaintiff is held at the directed verdict stage. In South Carolina, a medical malpractice plaintiff who relies upon expert testimony must introduce evidence that the defendant's negligence most probably resulted in the injuries alleged. Armstrong v. Weiland, 267 S.C. 12, 225 S.E.2d 851 (1976). A directed verdict for the defendant is appropriate where there is no evidence from which a jury could reasonably infer the defendant's negligence was a proximate cause of the plaintiff's injuries. Hanselmann v. McCardle, 275 S.C. 46, 267 S.E.2d 531 (1980).

The Hamil theory permits a plaintiff to reach the jury by introducing evidence that the defendant's negligence increased the risk of a particular harm. It eliminates the stricter burden of showing the defendant's negligence most probably caused the harm. Once past the directed verdict stage, the jury's standard for determining proximate cause is unaffected by the Hamil theory. Increased Risk of Harm: A New Standard of Evidence of Causation in Medical Malpractice Cases, 65 Boston Univ.L.Review 275 (1985).

The Hamil theory has been embraced in a number of jurisdictions as a factor in determining proximate cause in medical malpractice cases. See, e.g., Aasheim v. Humberger, 695 P.2d 824 (Mont.1985); Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609, 664 P.2d 474 (1983); Thornton v. CAMC, ETC., 305 S.E.2d 316 (W.Va.1983); Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla.Dist.Ct.App.1974), overruled, Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984), and cases cited therein.

Other jurisdictions have construed Section 323(a) as relating to the element of duty rather than proximate cause. "Section 323(a) simply establishes a duty on one who undertakes to render services for the protection of another to use due care to avoid increasing the risk of harm." Curry v. Summer, 136 Ill.App.3d 468, 91 Ill.Dec. 365, 371, 483 N.E.2d...