Sims v. Amisub of S.C., Inc.
| Decision Date | 12 February 2014 |
| Docket Number | Appellate Case No. 2012-212956,Opinion No. 5197 |
| Court | South Carolina Court of Appeals |
| Parties | Gladys Sims, as the Duly Appointed Guardian and Conservator of Kristy L. Orlowski (a/k/a Kristy Wood), Appellant/Respondent, v. Amisub of South Carolina, Inc., d/b/a Piedmont Medical Center, and C. Edward Creagh, M.D., Respondents/Appellants. |
Appeal From York County
S. Jackson Kimball, III, Special Circuit Court Judge
AFFIRMED AS MODIFIED
Chad A. McGowan, Ashley W. Creech, and Jordan C. Calloway, all of McGowan, Hood & Felder, LLC, of Rock Hill; and Whitney B. Harrison, of McGowan, Hood & Felder, LLC, of Columbia, for Appellant/Respondent.
Andrew F. Lindemann, of Davidson & Lindemann, P.A., of Columbia; and H. Spencer King, of The Ward Law Firm, P.A., of Spartanburg, for Respondent/Appellant C. Edward Creagh, M.D. William U. Gunn and Joshua T. Thompson, both of Holcombe Bomar, of Spartanburg, for Respondent/Appellant Amisub of South Carolina, Inc., d/b/a Piedmont Medical Center.LOCKEMY, J.: In this medical malpractice action, Gladys Sims, as the guardian and conservator of Kristy L. Orlowski, (Orlowski) appeals the circuit court's grant of summary judgment, arguing the court erred in estopping Orlowski from pursuing a medical negligence claim against Dr. C. Edward Creagh and Amisub of South Carolina, d/b/a Piedmont Medical Center (the Hospital). Dr. Creagh and the Hospital cross-appeal, arguing the circuit court erred in denying their motions for summary judgment because (1) Orlowski's claim was barred by the statute of limitations, and (2) the tolling provisions of section 15-3-40 of the South Carolina Code (2005) are not applicable. We affirm as modified.
FACTS/PROCEDURAL BACKGROUND
In 2003, Orlowski received prenatal care from Dr. R. Norman Taylor, III, and his practice, Rock Hill Gynecological & Obstetrical Associates, P.A. (RH GYNOB). On September 12, 2003, Orlowski suffered an eclamptic seizure. Following the seizure, she remained at the Hospital from September 12, 2003, until November 24, 2003.
On November 25, 2003, Orlowski was re-admitted to the Hospital by Dr. Creagh, who diagnosed her with a left pleural effusion. She was discharged on November 27, 2003. On November 29, 2003, Orlowski was re-admitted to the Hospital for persistent vomiting. An MRI revealed a hydro-pneumothorax in Orlowski's left lung. Her condition continued to decline, and on December 3, 2003, she suffered a cardiopulmonary arrest. Orlowski was transferred to Carolinas Medical Center where she remained through March 29, 2004.
Orlowski alleges she has been mentally incompetent since September 12, 2003, the date of the eclamptic seizure. On March 5, 2004, Orlowski's husband, Christopher T. Orlowski, was appointed as her guardian and conservator. Orlowski's mother, Gladys Sims, is her current guardian and conservator.
On August 24, 2006, Orlowski, through Sims, filed a medical malpractice action (the Taylor lawsuit) against Dr. Taylor and RH GYNOB. In the Taylor lawsuit, Orlowski alleged that as a direct and proximate result of Dr. Taylor's and RH GYNOB's medical negligence, she "suffered severe, debilitating, and permanent neurological deficits." Specifically, Orlowski claimed Dr. Taylor and RH GYNOB breached their duty of care by negligently failing to: (1) diagnose preeclampsia; (2) refer her to a specialist for further evaluation; and (3) supervise medical personneland staff in her treatment. Orlowski claimed past, present, and future injuries and damages, including: (1) chronic pain and suffering; (2) substantial medical expenses; (3) disfigurement; (4) mental anguish; (5) loss of enjoyment of life; (6) loss of income and related benefits; (7) need for full time medical and nursing care; (8) permanent restrictions and impairments that make it impractical for her to care for even her most basic of personal needs; and (9) other damages as may be identified during the course of this litigation.
The Taylor lawsuit was tried in April 2009. During the trial, Orlowski presented expert medical testimony from Drs. Stephen Pliskow and Barry Schifrin, who opined, to a reasonable degree of medical certainty, that Orlowski's medical problems were caused by the September 12, 2003 eclamptic seizure which could have been avoided had Dr. Taylor hospitalized Orlowski on September 11, 2003. Orlowski's experts testified her damages were a direct and proximate result of Dr. Taylor's negligence occurring on or before September 12, 2003. The jury returned a defense verdict in the Taylor lawsuit; however, Orlowski received $300,000 as a result of a high-low settlement agreement.
Orlowski, through Sims, commenced the present action against Dr. Creagh and the Hospital (collectively, the Respondents) on November 24, 2009. Orlowski alleged the medical negligence of the Respondents occurring between November and December 2003 caused her to suffer "severe debilitating injuries which have resulted in her incompetent state due to the hypotensive episode and hypoxic condition which has caused physical suffering, severe physical, cognitive and emotional pain and distress, and has ultimately caused [her] permanent and severely disabled physical and mental state."
Orlowski claimed Dr. Creagh breached his duty of care by negligently failing to: (1) detect her deteriorating condition; (2) diagnose and treat her pulmonary deterioration; (3) diagnose and treat her for acute respiratory distress syndrome (ARDS); (4) transfer her to more qualified physicians; (5) order, review, or evaluate testing during her treatment; and (6) order the correct treatment and medication. Additionally, Orlowski claimed the Hospital breached its duty of care by negligently failing to: (1) ensure she was properly monitored during her stay; (2) have in place proper policies, procedures, and protocols for the management and discharge of patients; (3) notify proper medical personnel during her declining health; (4) diagnose and treat her ARDS, pneumonia, and empyema of her left lung which resulted in her cardiopulmonary arrest and hypoxic injuries; (5) properly train nurses and staff; (6) monitor and respond to her worsening symptoms; (7) properly and timely notify the appropriate physicians of her deterioratingcondition; (8) have appropriate policies and procedures to ensure that patients with conditions similar to hers are treated appropriately; (9) insure that proper diagnostic procedures were conducted; and (10) intervene on her behalf rather than discharging her. Orlowski sought damages against the Respondents for the same injuries and damages claimed in the Taylor lawsuit.
The Respondents filed motions for summary judgment asserting Orlowski's suit was barred by the statute of limitations for medical malpractice actions pursuant to section 15-3-545(A) of the South Carolina Code (2005). They further argued Orlowski's suit was barred by collateral estoppel based upon the adjudication of the Taylor lawsuit. The motions were heard by the circuit court on July 18, 2012. Thereafter, in August 2012, the circuit court granted summary judgment on the estoppel defense but denied summary judgment on the statute of limitations defense. This appeal followed.
STANDARD OF REVIEW
When reviewing the grant of a summary judgment motion, this court applies the same standard that governs the trial court under Rule 56(c), SCRCP. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). "Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party must prevail as a matter of law." Id. In determining whether a genuine issue of fact exists, the evidence and all reasonable inferences drawn from it must be viewed in the light most favorable to the non-moving party. Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003). "Once the moving party carries its initial burden, the opposing party must come forward with specific facts that show there is a genuine issue of fact remaining for trial." Sides v. Greenville Hosp. Sys., 362 S.C. 250, 255, 607 S.E.2d 362, 364 (Ct. App. 2004).
LAW/ANALYSIS
I. Orlowski's Appeal
Orlowski argues the circuit court erred in estopping her from pursuing her medical negligence claims against the Respondents.
A. Collateral Estoppel
Under South Carolina law, "[c]ollateral estoppel, also known as issue preclusion, prevents a party from relitigating an issue that was decided in a previous action,regardless of whether the claims in the first and subsequent lawsuits are the same." Carolina Renewal, Inc. v. S.C. Dep't of Transp., 385 S.C. 550, 554, 684 S.E.2d 779, 782 (Ct. App. 2009). "The party asserting collateral estoppel must demonstrate that the issue in the present lawsuit was: (1) actually litigated in the prior action; (2) directly determined in the prior action; and (3) necessary to support the prior judgment." Id.
In its order, the circuit court found Orlowski was collaterally estopped from pursuing her negligence claims against the Respondents because her "presentation of evidence on liability and damages in the [Taylor lawsuit] was premised on the assumption that all of [her] injuries, damages, expenses . . . were directly and proximately caused by the negligence of Dr. Taylor and [RH GYNOB]." The court found it was "clear that [Orlowski] sought to prove that Dr. Taylor's negligence was entirely responsible for all of [Orlowski]'s injuries and damages." The court noted that at the hearing Orlowski acknowledged that the Respondents could have been joined as parties, yet she "sought to lay all blame for [her] condition and resulting damages upon Dr. Taylor and [RH GYNOB], to the exclusion of . . . [the Respondents]."
The circuit court relied on Graham v. State Farm Fire & Casualty Insurance Co., 277 S.C. 389, 287 S.E.2d 495 (1982), in granting the Respondents' summary judgment motions. In Graham, the plaintiff's automobile was destroyed by fire while parked in the garage of his residence....
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