Wogan v. Kunze, 4026.

• Citation: 623 S.E.2d 107
• Decision Date: 26 September 2005
• Docket Number: No. 4026.,4026.
• Court: United States State Supreme Court of South Carolina
• Parties: Phyllis J. WOGAN, individually and as Personal Representative of the Estate of James J. Wogan, Appellant, v. Kenneth C. KUNZE, M.D.; Hilton Head Gastroenterology, P.A.; Thomas P. Rzecycki, M.D.; Hilton Head General and Laparoscopic Surgery, P.A.; Gary W. Thomas, M.D.; and Gary W. Thomas M.D., P.A., Respondents.

623 S.E.2d 107

Phyllis J. WOGAN, individually and as Personal Representative of the Estate of James J. Wogan, Appellant, v. Kenneth C. KUNZE, M.D.; Hilton Head Gastroenterology, P.A.; Thomas P. Rzecycki, M.D.; Hilton Head General and Laparoscopic Surgery, P.A.; Gary W. Thomas, M.D.; and Gary W. Thomas M.D., P.A., Respondents.

No. 4026.

Court of Appeals of South Carolina.

Heard September 14, 2005.

Decided September 26, 2005.

Rehearing Denied December 15, 2005.

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I. McDuffie Stone, III, of Bluffton and Timothy M. Wogan, of Hilton Head Island, for Appellant.

Elliott T. Halio, and Andrew S. Halio, both of Charleston and James S. Gibson, Jr., of Beaufort, for Respondents.

ANDERSON, J.:

Phyllis J. Wogan, individually and as Personal Representative of the Estate of James J. Wogan, initiated this action for negligence, loss of consortium, breach of third-party beneficiary contract, breach of fiduciary duty, and violations of the South Carolina Unfair Trade Practices Act. The trial court granted summary judgment to Kenneth C. Kunze, M.D.; Hilton Head Gastroenterology, P.A.; Gary W. Thomas, M.D.; and Gary W. Thomas M.D., P.A.¹ (collectively "the Doctors") on the claims for unfair trade practices, breach of fiduciary duty, breach of a third-party beneficiary contract, and a portion of the negligence cause of action based upon their alleged failures to file Medicare claims. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Dr. Thomas administered chemotherapy to treat Mr. Wogan for rectal cancer. By the end of the chemotherapy, Mr. Wogan had developed a severe case of high output/high frequency diarrhea. The diarrhea caused malnutrition and dehydration, and consequently led to several hospitalizations. Mr. Wogan was referred to Dr. Kunze for treatment of the gastrointestinal problem. Dr. Kunze performed a colostomy in order to stop the diarrhea. Unfortunately, the procedure did not remedy the problem. The ordering and performance of this procedure makes up a portion of the medical malpractice action not subject to this appeal.

Dr. Kunze placed Mr. Wogan on the drug Sandostatin SC to alleviate his diarrheic condition. After determining the drug was effective at controlling the diarrhea, Dr. Kunze informed the Wogans he would switch the prescription to Sandostatin LAR. Sandostatin SC was inserted subcutaneously three times a day and was not covered by Medicare. Sandostatin LAR is a long-acting version that would need to be injected once a month. Ms. Wogan alleged Medicare would cover the drug if the diarrhea resulted from Mr. Wogan's chemotherapy.

According to Ms. Wogan, Dr. Kunze originally indicated he would preorder the Sandostatin LAR, administer it in his office, and submit the claim to Medicare. Later, Dr. Kunze notified Ms. Wogan he would not preorder the drug. Dr. Kunze's nurse suggested that Ms. Wogan consult with Dr. Thomas to see if he would prescribe and administer the medication, but Dr. Thomas would not, and represented he did not believe the diarrhea resulted from the chemotherapy. Eventually, Dr. Kunze agreed to administer the Sandostatin LAR, but required Ms. Wogan to purchase the monthly doses from a pharmacy. He refused to file a Medicare claim for the drug. The Wogans purchased Sandostatin LAR at a cost of $2000 per month for several months, and continued to insist either Dr. Kunze or Dr. Thomas assist with a Medicare claim.

Mr. Wogan's debilitating diarrhea persisted and resulted in several hospitalizations. During one hospital stay, Dr. Thomas ordered Mr. Wogan to continue taking all prescribed medications, including the Sandostatin, but he did not actually write a prescription for the Sandostatin. Mr. Wogan died in October 2001.

Originally, Ms. Wogan filed this action against Kenneth C. Kunze, M.D.; Hilton Head Gastroenterology, P.A.; Thomas P. Rzecycki, M.D.; Hilton Head General and Laparoscopic Surgery, P.A. A year and a half later, Gary W. Thomas, M.D. and Gary W. Thomas M.D., P.A., were added as parties. The complaint asserts claims for (1) negligence based on both medical malpractice from the surgery and failures by the Doctors to file claims or help Ms. Wogan file a claim with Medicare for the Sandostatin LAR; (2) breaches of the Doctors' contracts with Medicare under which it was alleged Mr. Wogan was a third-party beneficiary; (3) violations of the South Carolina Unfair Trade Practices Act; (4) breaches of fiduciary duty by the Doctors in failing to file the Medicare claim; and (5) loss of consortium.

The Doctors filed motions for summary judgment on all but the medical malpractice and loss of consortium claims. In their memoranda submitted to the court, they contend there is no private right of action provided in the Medicare statute, and Ms. Wogan's complaint for negligence regarding their failures to file Medicare claims was merely a claim for violation of the Medicare Act. Additionally, the Doctors maintained the action for unfair trade practices must fail because the medical field is a regulated industry. Finally, they argued there was no fiduciary duty to file the claim. Dr. Thomas contended he could not be found negligent because he never actually prescribed the medicine; thus, it would have been fraud had he submitted a claim to Medicare.

The trial court agreed with the Doctors and granted summary judgment as to the negligence action based on the failure to file a Medicare claim. The court found there is no private right of action, either expressed or implied, in the Medicare Act. Furthermore, the court ruled Ms. Wogan could not use a state law claim to assert an action based on the Doctors' failure to follow a federal act when the act does not provide for a private right of action.

According to the court, Ms. Wogan could not maintain her suit for unfair trade practices because as an individual she did not demonstrate an ascertainable loss, and the statute prohibits her from bringing a claim in a representative capacity. The court further rejected the breach of fiduciary duty claim because the only breaches alleged were for medical malpractice and failure to file a claim — both of which Ms. Wogan alleged in her negligence cause of action. Finally, the court concluded the allegations against Dr. Thomas failed, as he never prescribed the medicine, and therefore, had no duty to file a Medicare claim. Ms. Wogan's motion for reconsideration was denied.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pittman v. Grand Strand Entm't, Inc., 363 S.C. 531, 611 S.E.2d 922 (2005); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 603 S.E.2d 629 (Ct.App.2004). In determining whether any triable issue of fact exists, the evidence and all inferences which can reasonably be drawn therefrom must be viewed in the light most favorable to the nonmoving party. Medical Univ. of South Carolina v. Arnaud, 360 S.C. 615, 602 S.E.2d 747 (2004); Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 609 S.E.2d 565 (Ct.App.2005). If triable issues exist, those issues must go to the jury. Mulherin-Howell v. Cobb, 362 S.C. 588, 608 S.E.2d 587 (Ct.App.2005).

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 611 S.E.2d 485 (2005); BPS, Inc. v. Worthy, 362 S.C. 319, 608 S.E.2d 155 (Ct.App.2005). On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below. Willis v. Wu, 362 S.C. 146, 607 S.E.2d 63 (2004); see also Schmidt v. Courtney, 357 S.C. 310, 592 S.E.2d 326 (Ct.App.2003), cert. denied (Apr. 7, 2005) (stating that all ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party).

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Gadson v. Hembree, 364 S.C. 316, 613 S.E.2d 533 (2005); Montgomery v. CSX Transp., Inc., 362 S.C. 529, 608 S.E.2d 440 (Ct.App.2004). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Nelson v. Charleston County Parks & Recreation Comm'n, 362 S.C. 1, 605 S.E.2d 744 (Ct.App.2004). However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Ellis v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004).

The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact. McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 S.E.2d 181 (Ct.App.2004). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Regions Bank v. Schmauch, 354 S.C. 648, 582 S.E.2d 432 (Ct.App.2003). Rather, the nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Rife, 363 S.C. at 214, 609 S.E.2d at 568.

The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder. Dawkins v. Fields, 354 S.C. 58, 580 S.E.2d 433 (2003); Rumpf v. Massachusetts Mut. Life Ins. Co., 357 S.C. 386, 593...