O'Tuel v. Villani

• Decision Date: 12 January 1995
• Docket Number: No. 2303,2303
• Citation: 318 S.C. 24,455 S.E.2d 698
• Court: South Carolina Court of Appeals
• Parties: Muriel W. O'TUEL, Ph.D., as Guardian ad Litem for Adam McPherson Arnette, Appellant, v. A.J. VILLANI, Jr., M.D., Respondent. Terry G. ARNETTE and Elizabeth L. Arnette, Appellants, v. A.J. VILLANI, Jr., M.D., Respondent. . Heard

Page 698

455 S.E.2d 698

Muriel W. O'TUEL, Ph.D., as Guardian ad Litem for Adam

McPherson Arnette, Appellant, v. A.J. VILLANI, Jr., M.D., Respondent.

Terry G. ARNETTE and Elizabeth L. Arnette, Appellants, v. A.J. VILLANI, Jr., M.D., Respondent.

No. 2303.

Court of Appeals of South Carolina.

Heard Jan. 12, 1995.

Decided Feb. 13, 1995.

Rehearing Denied April 4, 1995.

Certiorari Denied Sept. 6, 1995.

A. Elliott Barrow, Jr., Charleston, for appellants.

Charles E. Carpenter, Jr., Donald V. Richardson, III, and Deborah Harrison Sheffield, all of Richardson, Plowden, Grier & Howser, Columbia, for respondent.

HOWELL, Chief Judge:

These are medical malpractice cases arising from the alleged negligence of the treating physician in failing to perform a caesarean delivery of the minor, Adam Arnette. The court granted summary judgment to the physician in both cases holding that the parents' claim was barred by the statute of limitations, and that the child's case failed as a matter of law because he did not present any competent evidence to demonstrate his learning disability was proximately caused by the actions of Dr. Villani. The parents and child appeal. We affirm as to the parents' case and reverse as to the child's case.

Adam was born by vaginal delivery on August 27, 1983, after his mother was in labor for slightly less than twenty four hours. Shortly after his birth, Adam developed certain physical problems, including pyloric stenosis and a blocked tear duct. In addition, Adam later developed a narrow urinary tract opening which required surgery, and wore corrective shoes because of a hip problem. These problems were characterized by Dr. Villani's experts as congenital or developmental. An MRI scan of Adam's brain taken just before the summary judgment hearing also revealed that Adam has a brain abnormality known as a type one Chiari malformation.

At the summary judgment hearing, Dr. Villani presented the depositions of several experts who testified that Dr. Villani did not breach the standard of care by allowing Adam's mother to deliver vaginally rather than performing a caesarean section. Dr. Villani's experts further testified that while periods of reduced oxygen did occur, Adam did not suffer an hypoxic event or other birth trauma which caused any of Adam's injuries. The appellants presented the deposition of Dr. Floyd, an obstetrics expert, who stated that Dr. Villani breached the standard of care by failing to perform a caesarean section in light of evidence of a potential cephalic/pelvic disproportion, and that Adam suffered an hypoxic event during delivery. However, Dr. Floyd did not testify as to the cause of Adam's learning disabilities. The appellants offered an affidavit from Dr. Onischenko, a clinical psychologist, to establish proximate cause.

I. Parents' Claim

Adam was born in 1983, and his learning disabilities were allegedly first discovered when he started school in 1990. The parents' suit was filed in June of 1992. The trial court granted Dr. Villani's motion for summary judgment, finding that the parents' claim was barred by the six year statute of repose in S.C.Code Ann. § 15-3-545 (Supp.1993). Under this statute, an action for medical malpractice must be commenced within three years from the date of treatment or three years from the date of discovery, but not more than six years from the date of occurrence. The parents contend § 15-3-545 requires them to bring suit within six years after their cause of action accrued. Because no injuries were manifest until Adam started school in 1990, the parents claim their action was timely filed. We disagree.

The parents' interpretation of the statute would allow all claims to be brought within six years after discovery of the injury, effectively reading out the statute's three year time limit. The six year period constitutes an outer limit beyond which a medical malpractice claim is barred, regardless of when it is discovered. Hoffman v. Powell, 298 S.C. 338, 380 S.E.2d 821 (1989). Thus, while the parents' claim may have accrued when Adam started school, their claim is nonetheless barred because it was instituted more than six years from the date of occurrence, in this case, the date of Adam's birth. See Johnson v. Phifer, 309 S.C. 505, 424 S.E.2d 532 (Ct.App.1992) (while cause of action accrued in 1987 when negligence was discovered, action filed in 1990 was barred by the medical malpractice statute of repose when negligence occurred in 1974-1977). Accordingly, the trial court properly granted summary judgment against the parents' claim.

II. Adam's Claim

A. Competency of Expert Witness

Dr. Villani also moved for summary judgment in Adam's case, arguing that Adam's claim was likewise barred by the statute of limitations, and that he did not violate any standard of medical practice which was a proximate cause of any injury to Adam. The trial court rejected the statute of limitations argument, finding that the tolling provisions of S.C.Code § 15-3-40 applied, giving Adam until his nineteenth birthday to bring suit. The trial court nevertheless granted summary judgment against Adam, finding that because Adam's proximate cause expert, a clinical psychologist, was not qualified as an expert in the field of obstetrics, his opinion on causation lacked probative value. Given that the plaintiff's obstetrical expert had no opinion regarding the proximate cause of Adam's mental deficiencies, the court granted summary judgment in favor of Dr. Villani.

On appeal, Adam contends Dr. Onischenko, an expert in learning disabilities and mental deficiencies, was competent to testify as to the proximate cause of Adam's injuries. Given the particular circumstances of this case, we agree. In a medical malpractice case, the plaintiff must establish proximate cause as well as negligence, Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990), and, as a general rule, expert testimony is required to establish proximate cause. Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (Ct.App.1984). To be competent as an expert, a witness must have acquired by reason of study or experience or both such knowledge and skill in a profession or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony. Id. Stated differently, if the witness through his education and experience is able to draw inferences that could not be drawn by a layman, he should be qualified as an expert. See Avret v. McCormick, 246 Ga. 401, 271 S.E.2d 832 (1980). The record establishes that Dr. Onischenko is a specialist in learning, psychological, and other intellectual disabilities, with a master's as well as doctorate degree. He has worked in his area of specialty since at least 1975. Given his education and experience, there can be no doubt that Dr. Onischenko is competent to give expert testimony in the area of learning and other intellectual disabilities.

The trial court, however, refused to accept Dr. Onischenko's affidavit to establish proximate cause, stating that "[n]othing in the record establishes that Dr. Onischenko had the training or the experience to qualify him as an expert in obstetrics. His training is as a clinical psychologist. He is not a physician. He offered no evidence that would qualify him as an expert on obstetrics, the diagnosis of hypoxia, [or] delivery...." However, Dr. Onischenko was not offered as an expert in obstetrics, nor was his testimony offered to establish that hypoxia in fact occurred during Adam's delivery. It was Dr. Floyd's testimony which provided evidence that Dr. Villani breached the standard of care and that Adam suffered hypoxia. Dr. Onischenko's affidavit was offered for proximate cause only; that is, to show that the hypoxia already established through Dr. Floyd's testimony caused Adam's learning disabilities. Because Dr. Onischenko was not offered to show a breach of the standard of care, he need not have any specialized knowledge in the field of obstetrics.

According to his affidavit, Dr. Onischenko is "frequently called upon to make diagnoses of learning and other intellectual and psychological disabilities and to prescribe treatment. As an integral part of making such diagnoses and prescribing treatment, it is often required that an analysis of the cause of such problems be made and conclusions reached." Dr. Onischenko's affidavit therefore established that through his training, education, and experience, he was capable of drawing inferences about the cause of Adam's problems which could not be drawn by the jury or other laymen. We require no more than that of an expert witness. We do not require that an expert in a medical malpractice be a specialist in the field of medicine involved, Bonaparte v. Floyd, 291 S.C. 427, 354 S.E.2d 40 (Ct.App.1987), nor do we necessarily require that the expert even be a doctor. See Gooding v. St. Francis Xavier Hosp., --- S.C. ----, 454 S.E.2d 328 (S.C.Ct.App.1995) (emergency room technician who trained doctors in proper intubation methods competent to testify that teeth are easily chipped if intubation performed improperly); cf. Daniels v. Bernard, 270 S.C. 51, 240 S.E.2d 518 (1978) (in personal injury action, chiropractor competent to interpret x-rays and testify about plaintiff's physical condition and need for future treatment); Howle v. PYA/Monarch, Inc., 288 S.C. 586, 594, 344 S.E.2d 157, 161 (Ct.App.1986) ("a psychologist, once qualified as an expert witness by reason of education, training, and experience, is competent to testify as to diagnosis, prognosis, and causation of mental and emotional disturbance."). While Dr. Onischenko's lack of a medical license may affect his credibility and is a proper subject for cross-examination and comment during closing argument, it is not, in and of itself, reason to refuse to qualify him as an expert. Howle, 288 S.C. at 594, 344 S.E.2d at 161. Defects in the amount and quality of his education or...