Tatum v. MEDICAL UNIVERSITY OF SC

• Decision Date: 03 May 1999
• Docket Number: No. 2986.,2986.
• Citation: 335 S.C. 499,517 S.E.2d 706
• Court: South Carolina Court of Appeals
• Parties: Jennifer M. TATUM and Billy Joe Scarborough, Appellants, v. MEDICAL UNIVERSITY OF SOUTH CAROLINA, Respondent.

335 S.C. 499

517 S.E.2d 706

Jennifer M. TATUM and Billy Joe Scarborough, Appellants, v. MEDICAL UNIVERSITY OF SOUTH CAROLINA, Respondent.

No. 2986.

Court of Appeals of South Carolina.

Heard March 9, 1999.

Decided May 3, 1999.

Rehearing Denied June 26, 1999.

Certiorari Granted November 5, 1999.

Donald E. Jonas, of Cotty & Jonas, of Columbia, for appellants.

Robert H. Hood, Barbara W. Showers, P. Gunnar Nistad and Joseph C. Wilson, IV, all of Hood Law Firm, of Charleston, for respondent.

HEARN, Justice:

In this medical malpractice action, Jennifer M. Tatum appeals a circuit court order granting the Medical University of South Carolina's (MUSC) motion to dismiss pursuant to Rule 12(b)(6), SCRCP. Tatum contends the circuit court erred in finding workers' compensation benefits were Tatum's exclusive remedy, thus barring her medical malpractice claims against MUSC. We reverse and remand.

FACTS/PROCEDURAL HISTORY

On November 3, 1993, Tatum injured her back while transporting a pig in the course of her employment as an animal care technician with MUSC. MUSC is operated and funded as a public institution of the State of South Carolina and is a governmental entity as defined in the South Carolina Tort Claims Act.

Tatum's complaint sets forth the following facts. At the direction of MUSC, Dr. Nicholson, an assistant professor with MUSC's Back Pain Clinic, diagnosed Tatum with a "midline broadly based disc herniation." On March 25, 1994, after repeated cervical epidural injections, MUSC referred Tatum to Dr. Patel for surgical consultation. MUSC employed Dr. Patel as an assistant professor and neurological surgeon. On April 6, 1994, Dr. Patel surgically fused two of Tatum's vertebrae. On April 29, 1994, Dr. Patel repeated the surgery because the original bone graft site collapsed.

During the second surgery, Dr. Patel inserted a synthes plate by drilling and placing screws in Tatum's vertebrae. Dr. Patel failed to inform Tatum that he planned on inserting the plate and failed to discuss the potential risks prior to surgery. During the procedure, Dr. Patel, or someone under his supervision, drilled through the vertebrae, damaging Tatum's cervical spinal cord and the nerves affecting Tatum's arms and upper extremity. Tatum alleges a reasonable patient would not have consented to the drilling if the risks had been fairly and adequately explained.

On June 13, 1994, after Tatum reported experiencing difficulty swallowing, Dr. Patel performed an additional surgery to remove a dislodged synthes plate because a screw became loosened and protruded into Tatum's esophagus. MUSC provided Tatum with the above services through University Medical Associates (UMA), a part of MUSC's Clinical Practice Plan.

MUSC advised Tatum her symptoms and complaints resulted from various causes other than the above surgical procedures. On January 26, 1995, Tatum first learned Dr. Patel's surgery caused permanent damage to her spinal cord. Tatum has pursued her workers' compensation remedy and has received a final award.

Tatum filed this suit against MUSC alleging Dr. Patel negligently punctured her spinal canal, which caused injury to her cervical spinal cord, and negligently failed to inform her of the risks associated with the procedures employed. Tatum further alleges she did not learn of the puncture until seeking treatment from a secondary source because MUSC failed to notify her of the surgical complications. Tatum's complaint included a loss of consortium claim brought by her husband.

MUSC filed an amended answer arguing the Workers' Compensation Act provided the exclusive remedy because Tatum's injuries arose out of and in the course of her employment. MUSC moved to dismiss pursuant to Rule 12(b)(6), SCRCP, arguing that public entities and their employees cannot exempt themselves from the workers' compensation provisions. MUSC further asserted that under South Carolina Code section 42-15-70 (1976), an employer is not liable for a physician's malpractice, and any malpractice injury is merged into the workers' compensation award. The circuit court granted MUSC's motion to dismiss, finding workers' compensation was Tatum's exclusive remedy.

STANDARD OF REVIEW

A motion to dismiss must be based solely upon the allegations set forth in the complaint. Rule 12(b)(6), SCRCP; Jarrell v. Petoseed Co., Inc., 331 S.C. 207, 209, 500 S.E.2d 793, 794 (Ct.App.1998). "Viewing the evidence in favor of the plaintiff, the motion must be granted if facts alleged in the complaint and inferences reasonably deducible therefrom do not entitle the plaintiff to relief on any theory of the case." Jarrell, 331 S.C. at 209, 500 S.E.2d at 794. "The question to be considered is whether in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Holy Loch Distrib., Inc. v. Hitchcock, 332 S.C. 247, 252, 503 S.E.2d 787, 790 (Ct.App.1998).

LAW/ANALYSIS

MUSC contends South Carolina Code section 42-1-540 (1976), mandates workers' compensation benefits as Tatum's exclusive remedy. Tatum urges this court to adopt a "dual capacity" analysis whereby her employer could also be liable in malpractice as her physician.

Tatum's initial injury is unquestionably subject to the provisions of the South Carolina Workers' Compensation Act, S.C.Code § 42-1-10 et seq. (1976 & Supp.1998). "The State, its municipal corporations and political subdivisions thereof, and the employees of the State or its municipal corporations or political subdivisions are subject to this title." S.C.Code Ann. § 42-1-320 (Supp.1998).¹ MUSC is a governmental entity funded and operated as a public institution of the State of South Carolina, and Tatum was an employee of MUSC at the time of her injury.

South Carolina's workers' compensation laws were enacted to provide a comprehensive approach for compensating employees injured on the job. "The employee receives the right to swift and sure compensation; the employer receives immunity from tort actions by the employee. This quid pro quo approach to [workers'] compensation has worked to the advantage of society as well as the employee and employer." Parker v. Williams & Madjanik, 275 S.C. 65, 70, 267 S.E.2d 524, 526 (1980).

To ensure the exclusivity of the remedy provided to the employee, the Workers' Compensation Act provides in pertinent part:

The rights and remedies granted by this Title to an employee when he and his employer have accepted the provisions of this Title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.

S.C.Code Ann. § 42-1-540 (1985) (emphasis added); see Carter v. Florentine Corp., Inc., 310 S.C. 228, 230, 423 S.E.2d 112, 113 (1992)

("Where an employer is covered by Workers' Compensation, the Act is the exclusive remedy of an employee injured in the course and scope of employment."), overruled on other grounds by Ballenger v. Bowen, 313 S.C. 476, 443 S.E.2d 379 (1994); Meyer v. Piggly Wiggly No. 24, Inc., 331 S.C. 261, 264, 500 S.E.2d 190, 191-92 (Ct.App.1998) (noting the circuit court lacks jurisdiction to entertain a suit against the employer when workers' compensation is the employee's exclusive remedy). The Workers' Compensation Act further provides:

[T]he employer shall not be liable in damages for malpractice by a physician or surgeon furnished by him pursuant to the provisions of this section, but the consequences of any such malpractice shall be deemed part of the injury resulting from the accident and shall be compensated for as such.

S.C.Code Ann. § 42-15-70 (1985).

These statutes together form the basis for MUSC's contention that it cannot be held liable in tort for Dr. Patel's alleged malpractice. MUSC argues that any second injury attributable to Dr. Patel merely collapses into the workers' compensation award.

Tatum, on the other hand, argues that these statutes address the "free choice of doctor" controversy and should not be read to prevent malpractice actions against all treating physicians. See Arthur Larson & Lex K. Larson, 5 Larson's Workers' Compensation Law § 61.12(b) & (c) (1998). In South Carolina, unlike some other states, the employer directs the employee to a particular treating physician for a work-related injury. S.C.Code Ann. § 42-15-60 (1976); 25A S.C.Code Ann.Reg. 67-509(A) (1990). The employee cannot choose her own treating physician without risking being barred from further compensation. S.C.Code Ann. § 42-15-60.

We agree that Code section 42-15-70 does not bar a medical malpractice suit against a negligent treating physician. See S.C.Code Ann. § 42-1-560 (1976) (authorizing suits for damages against third parties). The purpose of the statute was simply to insulate the employer from liability for a treating physician's negligence merely because the employer exercised control in choosing the physician. We can discern no broader purpose to the initial clause of section 42-15-70 exculpating an employer from liability for malpractice. This interpretation accords with the basic workers' compensation policy of insulating an employer from tort liability arising directly as a result of an industrial accident. See Parker, 275 S.C. at 70,

267 S.E.2d at 526.

We likewise agree that section 42-15-70's second clause, which MUSC alleges merges a malpractice claim into a workers' compensation award, should not be construed to bar a separate claim for damages. That clause has been interpreted to include as a compensable injury "[e]very natural consequence which flowed from this [work-related] injury, unless the result of an independent intervening cause, sufficient to break the chain of causation." Whitfield v. Daniel Constr. Co., 226 S.C. 37, 41, 83...