Wogan v. Kunze, 26542.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Waller
• Citation: 666 S.E.2d 901,379 S.C. 581
• Parties: Phyllis J. WOGAN, individually and as Personal Representative of the Estate of James J. Wogan, Petitioner, 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.
• Docket Number: No. 26542.,26542.
• Decision Date: 08 September 2008

666 S.E.2d 901 379 S.C. 581 Phyllis J. WOGAN, individually and as Personal Representative of the Estate of James J. Wogan, Petitioner,
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. 26542. Supreme Court of South Carolina. Heard May 7, 2008. Decided September 8, 2008. Rehearing Denied October 9, 2008.

[666 S.E.2d 902]

Samuel S. Svalina and Jennifer I. Campbell, both of Svalina Law Firm, of Beaufort; and Timothy M. Wogan, of Hilton Head Island, for Petitioner.

Elliott T. Halio and Andrew S. Halio, both of Halio & Halio, of Charleston; and Mary Bass Lohr and James S. Gibson, Jr., both of Howell Gibson & Hughes, of Beaufort, for Respondents.

Frederick A. Crawford and Anthony E. Rebollo, both of Richardson, Plowden & Robinson, of Columbia, for Amicus Curiae SC Association of Certified Public Accountants.

Johannes S. Kingma and John C. Rogers, of Atlanta, and Lenna S. Kirchner, of Carlock Copeland Semier & Stair, of Charleston, for Amicus Curiae Abram Serotta & Serotta, Maddocks, Evans & Co.

Justice WALLER.

We granted a writ of certiorari to review the Court of Appeals' opinion in Wogan v. Kunze, 366 S.C. 583, 623 S.E.2d 107 (Ct.App. 2005). We affirm the grant of summary judgment in favor of Dr. Kunze, as modified.

666 S.E.2d 903

FACTS

Petitioner's husband, James J. Wogan, was diagnosed with rectal cancer in 1997 and was treated with chemotherapy by an oncologist, Dr. Thomas. Mr. Wogan developed a very severe case of diarrhea, resulting in malnutrition and dehydration, for which he was referred to Respondent, Dr. Kunze, a gastroenterologist. A colostomy was performed to stop the diarrhea but did not remedy the problem. Dr. Kunze placed Wogan on the drug Sandostatin SC, which was inserted subcutaneously three times a day and was not covered by Medicare. Sandostatin SC stopped the diarrhea within a few days.

A few weeks later, Dr. Kunze suggested Mr. Wogan try a new drug, Sandostatin LAR, which could be administered monthly, and was, according to Wogan's complaint, covered by Medicare. Dr. Kunze refused to pre-order the Sandostatin LAR and administer it in his office because he did not believe it was covered by Medicare unless the diarrhea was caused by the chemotherapy. The chemotherapist, Dr. Thomas, was of the opinion that it was not covered. Dr. Thomas also refused to prescribe and administer the medication. Dr. Kunze ultimately agreed to administer the Sandostatin LAR, but he required the Wogans to purchase the monthly doses directly from a pharmacy.

The Wogans purchased Sandostatin LAR at a cost of $2000 per month for three months.¹ Neither Dr. Kunze nor Dr. Thomas would assist them with filing a Medicare claim. Mr. Wogan died in October 2001.

Mrs. Wogan filed this action against Dr. Kunze and others, alleging (1) negligence based on both medical malpractice from the surgery and Dr. Kunze's failure to file Medicare claims for the Sandostatin LAR; (2) breach of Dr. Kunze's contract with Medicare under which it was alleged Mr. Wogan was a third-party beneficiary; (3) violations of the South Carolina Unfair Trade Practices Act (UTPA); (4) breach of fiduciary duty in failing to file the Medicare claim; and (5) loss of consortium.

The trial court granted partial summary judgment to Dr. Kunze, holding Mrs. Wogan could not assert a state law negligence claim based on Kunze's failure to comply with a federal act, where the federal act (Medicare Act) did not allow a private right of action. The trial court further rejected Wogan's breach of fiduciary duty claim, finding the only breaches alleged (medical malpractice and failure to file a claim) had been alleged in the negligence cause of action. The Court of Appeals affirmed.²

ISSUES³

1. Did the Court of Appeals err in affirming the trial court's ruling that Wogan could not maintain a state negligence claim against Dr. Kunze based upon his failure to file the Medicare claim?

2. Was summary judgment properly granted on the breach of fiduciary duty claim?

STANDARD OF REVIEW

When reviewing the grant of summary judgment, this 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. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). In determining whether triable issues of fact exists, the evidence and all factual inferences must be viewed in the light most favorable to the nonmoving party. Sauner v. Pub. Serv. Auth., 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003). If evidentiary facts are not disputed but the conclusions or inferences to be drawn from them are, summary judgment should be denied. Baugus v. Wessinger, 303 S.C. 412, 415, 401 S.E.2d 169, 171 (1991). The purpose

666 S.E.2d 904

of summary judgment is to expedite disposition of cases which do not require the services of a fact finder. George v. Fabri, 345 S.C. 440, 548 S.E.2d 868 (2001).

1. NEGLIGENCE⁴

Wogan contends the Court of Appeals erred in affirming the grant of summary judgment to Dr. Kunze. She asserts liability is based, not on a violation of the Medicare Act,⁵ but upon a violation of the standard of care of a reasonable physician. Wogan claims it was a breach of the standard of care for Dr. Kunze to refuse to...