Eades v. Palmetto Cardiovascular & Thoracic, PA ( 2018 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Johnny Eades and Barbara Eades, Respondents,
v.
Palmetto Cardiovascular and Thoracic, PA; James M.
Benner, MD; Mark J. Epler, MD; Trident Medical
Center, LLC; Columbia/HCA Healthcare Corporation of
South Carolina; HCA Healthcare-South Carolina; Trident
Medical Center; Trident Health System; Palmetto
Primary Care Physicians, LLC; Trident Emergency
Physicians; LLC; Brian R. Whirreth, MD; Patricia
Campbell, MD; Christine E. McNeal, MD; Matthew
Wallen, MD; Charleston Radiologists, PA; Joseph M.
Mullaney, MD; Tri-County Radiology Associates, PA;
and Troy Marlon, MD, Defendants,
Of whom Palmetto Primary Care Physicians, LLC and
Trident Emergency Physicians, LLC are Petitioners.
Appellate Case No. 2015-001967
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Charleston County
The Honorable Kristi Lea Harrington, Circuit Court
Judge
Opinion No. 27770
Heard December 1, 2016 – Filed February 28, 2018
REVERSED
Thomas C. Salane and R. Hawthorne Barrett, both of
Turner Padget Graham & Laney, PA, of Columbia, for
Petitioner.
Gary Lane Cartee, of North Charleston, for Respondents.
JUSTICE HEARN: This case requires us to decide whether an expert witness
affidavit submitted prior to the commencement of a medical malpractice action
complied with section 15-36-100(A) of the South Carolina Code (Supp. 2016). The
trial court found the affidavit insufficient based on the expert's practice area and
dismissed the Notice of Intent to File Suit (NOI). We reverse, finding the statute
permits the production of an affidavit from an expert who does not practice in the
same area of medicine as the allegedly negligent doctor.
BACKGROUND
This medical malpractice action arose after Johnny Eades sought treatment
from numerous healthcare providers, including Petitioners Palmetto Primary Care
Physicians, LLC and Trident Emergency Physicians, LLC, for a blockage and
aneurysm of the left iliac artery in July and August of 2009. Three years later, Mr.
Eades and his wife filed an NOI to bring the medical malpractice action in
Charleston County. Two days after filing the NOI, the Eades filed answers to
interrogatories listing Dr. Paul A. Skudder as an expert witness, along with an
affidavit from Skudder pursuant to section 15-79-125 of the South Carolina Code
(Supp. 2016).
All defendants, including Petitioners, filed motions to dismiss the Eades' NOI.
Following a hearing, the trial court granted the defendants' motions on two grounds,
holding: (1) section 15-79-125 requires medical malpractice plaintiffs to file expert
affidavits in compliance with section 15-36-100 contemporaneously with the NOI;
and (2) the Eades' expert affidavit was defective because it did not conform to the
requirements of section 15-36-100(A). Specifically, the trial court found the expert
affidavit was insufficient because it did not indicate that Skudder had "actual
professional knowledge and experience" in the same practice areas as Dr. Campbell
and Dr. Wallen.1 The order further stated, "Dr. Skudder's affidavit fails to provide
the proper qualifications, required by section 15-36-100, that would permit Dr.
Skudder to present an expert opinion about Dr. Campbell and Dr. Wallen."
The court of appeals reversed in an unpublished opinion pursuant to this
Court's decision in Ranucci v. Crain, 409 S.C. 493, 763 S.E.2d 189 (2014), which
held that section 15-79-125 incorporates the safe harbor provision of 15-36-
100(C)(1) and extends the time for filing the expert witness affidavit in medical
malpractice actions where the statute of limitations is in danger of expiring.2 In a
footnote, the court of appeals summarily concluded the question of the sufficiency
of the expert affidavit was not preserved for review and declined to address the issue.
This Court granted certiorari to review the court of appeals' decision.
ISSUES PRESENTED
Did the court of appeals err in failing to affirm the dismissal as to Petitioners because
the expert affidavit did not comply with section 15-36-100?
DISCUSSION
Finding the sufficiency of the Eades' expert affidavit is preserved for appellate
review,3 we turn to the merits of the issue. Petitioners argue the court of appeals
1
Campbell and Wallen were acting as employees of Palmetto Primary Care
Physicians, LLC and Trident Emergency Physicians, LLC, respectively, when the
alleged malpractice occurred.
2
Petitioners do not challenge this holding.
3
As an initial matter, we agree with Petitioners' argument that the issue is
preserved for review. In order for an issue to be preserved for appellate review,
the issue must have been timely raised by the appellant with sufficient specificity
and ruled upon by the trial court. S.C. Dep't of Transp. v. First Carolina Corp. of
S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007) (citing Jean Hoefer Toal et
al., Appellate Practice in South Carolina 57 (2d ed. 2002)).
In their motion to dismiss, Petitioners, together with their agents Campbell
and Wallen, expressly raised the question of whether Skudder's affidavit complied
with the requirements imposed by section 15-36-100. Specifically, Petitioners
argued the affidavit was insufficient because it only stated Skudder was a board-
erred in failing to affirm the trial judge's dismissal on the grounds that the Eades'
affidavit did not comport with the provisions of section 15-36-100(A). Specifically,
Petitioners claim Skudder's affidavit was defective because it did not indicate that
he practiced in the same area of medicine as Campbell and Wallen, in violation of
the statutory requirements. We disagree.
"Questions of statutory interpretation are questions of law, which we are free
to decide without any deference to the court below." Grier v. AMISUB of S.C., Inc.,
397 S.C. 532, 535, 725 S.E.2d 693, 695 (2012). Statutes in derogation of the
common law are to be strictly construed. Epstein v. Coastal Timber Co., 393 S.C.
276, 285, 711 S.E.2d 912, 917 (2011). "Under this rule, a statute restricting the
common law will 'not be extended beyond the clear intent of the legislature.''' Grier,
397 S.C. at 536, 725 S.E.2d at 696 (quoting Crosby v. Glasscock Trucking Co., 340
S.C. 626, 628, 532 S.E.2d 856, 857 (2000)). Statutes limiting a claimant's right to
bring suit are subject to this rule. Id. In Grier, this Court reviewed subsection (B)
of 15-36-100 and found the statute restricted a plaintiff's common law right to bring
a malpractice claim, requiring the Court to strictly construe the statute's
requirements. 397 S.C. at 538, 725 S.E.2d at 697.
Prior to initiating a medical malpractice action, section 15-79-125(A) requires
a plaintiff to contemporaneously file a supporting affidavit from an expert witness
in compliance with section 15-36-100. Section 15-36-100(A) defines an expert
witness as an individual who is qualified as to the acceptable conduct of the
certified vascular surgeon, but did not state that he practiced in the same areas as
Campbell and Wallen.
The trial court stated in its order that although the expert affidavit did not
comply with the grounds which were later held erroneous by Ranucci, "an additional
ground for dismissal was raised by Defendants." (emphasis added). As the trial
court was aware, Petitioners submitted a joint motion to dismiss with Campbell and
Wallen raising the issue of the sufficiency of the affidavit. Thus, the trial court's
order was not limited to Campbell and Wallen, but ruled on the issue as it applied to
Petitioners as well. Furthermore, as the doctors' employers, Petitioners could only
be liable vicariously through Campbell and Wallen. Accordingly, even if the trial
court only addressed the sufficiency of the affidavit as it applied to Campbell and
Wallen, it necessarily follows that the issue was raised and ruled upon as it pertained
to Petitioners as well. Therefore, from the record it is clear that Petitioners raised
the sufficiency of the expert affidavit in their motion, and the trial court ruled on the
issue.
professional whose conduct is at issue and who:
(1) is licensed by an appropriate regulatory agency to practice his or her
profession in the location in which the expert practices or teaches; and
(2)(a) is board certified by a national or international association or
academy which administers written and oral examinations for
certification in the area of practice or specialty about which the opinion
on the standard of care is offered; or
(b) has actual professional knowledge and experience in the area of
practice or specialty in which the opinion is to be given as the result of
having been regularly engaged in:
(i) the active practice of the area of specialty of his or her profession for
at least three of the last five years immediately preceding the opinion;
(ii) the teaching of the area of practice or specialty of his or her
profession for at least half of his or her professional time as an
employed member of the faculty of an educational institution which is
accredited in the teaching of his or her profession for at least three of
the last five years immediately preceding the opinion; or
(iii) any combination of the active practice or the teaching of his or her
profession in a manner which meets the requirements of subitems (i)
and (ii) for at least three of the last five years immediately preceding
the opinion;
(3) is an individual not covered by subsections (A)(1) or (2), that has
scientific, technical, or other specialized knowledge which may assist
the trier of fact in understanding the evidence and determining a fact or
issue in the case, by reason of the individual's study, experience, or
both. However, an affidavit filed pursuant to subsection (B) by an
expert qualified under this subsection must contain an explanation of
the expert's credentials and why the expert is qualified to conduct the
review required by subsection (B). The defendant is entitled to
challenge the sufficiency of the expert's credentials pursuant to
subsection (E).
On the merits, Petitioners contend Skudder's affidavit was insufficient under
section 15-36-100(A) because it did not demonstrate he had "actual professional
knowledge and experience" in the same specific practice areas as Campbell and
Wallen.4 Petitioners categorize Campbell and Wallen's areas of practice as
emergency medicine and primary care, and attempt to disqualify Skudder based on
his classification as a vascular and critical care surgeon. Thus, the crux of
Petitioners' argument hinges on the interpretation of "area of practice or specialty"
as contained in section 15-36-100(A)(2)(a) & (b).
Notwithstanding our disagreement with Petitioners' proposed application of
subsection (A)(2), we need not reach that issue because we find Skudder's affidavit
comports with section 15-36-100(A)(3). Subsection (A)(3) provides that an
individual who is not otherwise qualified under subsections (A)(1) or (2) may still
qualify as an expert if he has "scientific, technical, or other specialized knowledge
which may assist the trier of fact in understanding the evidence and determining a
fact or issue in the case, by reason of the individual's study, experience, or both."
4
In pertinent part, Skudder's affidavit read:
1. I, Paul Skudder, am a medical doctor licensed, without restriction and
in good standing, in the states of Vermont, Massachusetts, and New
York, and in the District of Columbia. I currently practice medicine,
and I have been actively engaged in the practice of medicine for more
than the past five years, and this practice has included the evaluation and
treatment of patients with issues including occluded arteries, aneurysms,
and related medical issues, which include issues similar to those of
Johnny Eades in July and August, 2009. I have the following board
certifications: 1986, American Board of Surgery (Recertified 2006);
and ABS Surgical Critical Care (Recertified 2001).
2. I am familiar with the applicable medical standards for the evaluation
and treatment of patients under the same or similar circumstances as
Johnny Eades, including particularly, but not restricted to, occlusion of
the left iliac artery, aneurysm of the same artery, and related issues. I
am aware of the degree of care and skill ordinarily exercised by
members of the medical profession under the same or similar
circumstances as it relates to the care and treatment of patients such as
Johnny Eades in July and August of 2009. This knowledge is based
upon my education, training, and experience.
S.C. Code § 15-36-100(A)(3). To qualify under this provision, an affidavit filed by
a proposed expert must contain an explanation of the expert's credentials and their
relevance to the case. Id. Thus, this subsection contemplates the production of an
expert affidavit from a doctor who is not certified in or does not practice in the same
area of medicine as the defendant doctor, but otherwise possesses specialized
knowledge to assist the trier of fact.
We find the information contained in Skudder's affidavit clearly sufficient to
satisfy this provision. The affidavit lists Skudder's specialized, technical knowledge
regarding the issue of Mr. Eades' treatment, explaining he is "aware of the degree of
care and skill ordinarily exercised by members of the medical profession under the
same or similar circumstances as it relates to the care and treatment of patients such
as Johnny Eades. . . . This knowledge is based upon my education, training, and
experience." Skudder further explained his active practice of medicine includes the
evaluation and treatment of occluded arteries, aneurysms, and other issues similar to
those for which Mr. Eades sought treatment. Thus, we find Skudder demonstrated
he possesses the specialized knowledge and training that may assist the trier of fact
in this case, and he explained why his credentials qualify him to identify a negligent
act or omission committed by Petitioners. Accordingly, even if Skudder did not
satisfy the requirements of subsection (A)(2) because he did not list the same practice
areas as Campbell and Wallen, his affidavit comports with the more general
requirements of subsection (A)(3).
CONCLUSION
For the foregoing reasons, the court of appeals erred in finding the sufficiency
of the affidavit was unpreserved for review. Reaching the merits, we find the expert
affidavit produced by the Eades sufficient to comply with the statutory requirements
of section 15-36-100(A)(3). Therefore, the opinion of the court of appeals is
REVERSED.
BEATTY, C.J., FEW, J., and Acting Justice James E. Moore, concur. Acting
Justice Costa M. Pleicones, concurring in result only.