Rowe v. Bon Secours-St. Francis Xavier Hospital

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Arthur Peter Rowe, Appellant,
v.
Bon Secours-St. Francis Xavier Hospital, Inc., d/b/a Bon
Secours St. Francis Xavier Hospital, Bon Secours St.
Francis Hospital and Roper St. Francis Healthcare, Bon
Secours St. Francis Health System, Inc., d/b/a Bon
Secours St. Francis Xavier Hospital, Bon Secours St.
Francis Hospital and Roper St. Francis Healthcare, Bon
Secours Health System, Inc., d/b/a Bon Secours St.
Francis Hospital and Roper St. Francis Healthcare, Roper
St. Francis Foundation, d/b/a Roper St. Francis
Healthcare, Bon Secours-St. Francis Health System
Foundation, Inc., d/b/a Roper St. Francis Healthcare,
Roper Hospital, Inc., d/b/a Roper St. Francis Healthcare,
Byron N. Bailey, M.D., Christine C. Thompson, M.D.,
a/k/a Christine Thompson, M.D., Charleston
Neurosurgical Associates, LLC, Mt. Pleasant Anesthesia
Associates, PA, Charleston Surgery Center Limited
Partnership, d/b/a Charleston Surgery Center, Tammy
McGraw, CRNA, a/k/a Tammy McGraw Speicher,
CRNA, Nurse Anesthesia of South Carolina, LLC,
Jeffery S. Wager, CRNA, Tricoastal Healthcare Billing
and Management, Inc., and Steven Heath Cobb,
Respondents.
Appellate Case No. 2013-001682
Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge
Unpublished Opinion No. 2015-UP-288
Submitted May 1, 2015 – Filed June 17, 2015
AFFIRMED
Arthur Peter Rowe, of Charleston, pro se.
James B. Hood, Robert H. Hood, and Deborah H.
Sheffield, all of the Hood Law Firm, LLC, of Charleston,
for Respondent Christine C. Thompson, M.D.; Darren K.
Sanders, of Buyck, Sanders & Simmons, LLC, of Mount
Pleasant, for Respondents Byron N. Bailey, M.D. and
Charleston Neurosurgical Associates, LLC; Jack G.
Gresh, of Hall Booth Smith, P.C., of Charleston, for
Respondent Charleston Surgery Center Limited
Partnership d/b/a Charleston Surgery Center; Andrew S.
Halio, of Halio & Halio, of Charleston, for Respondent
Steven Heath Cobb; Jonathan H. Dunlap, of Batten Lee,
PLLC, of Raleigh, North Carolina, for Respondents
Nurse Anesthesia of South Carolina, LLC, Jeffery S.
Wager, CRNA, and Tammy McGraw, CRNA, a/k/a
Tammy McGraw Speicher, CRNA; Fred W. Suggs, III of
Roe Cassidy Coates & Price, P.A., of Greenville, for
Respondents Bon Secours Health Systems, Inc., Bon
Secours St. Francis Health System Foundation, Inc., and
Bon Secours St. Francis Hospital; and Stephen L. Brown,
Joseph J. Tierney, Jr., Christine Kent Toporek, and
Russell Grainger Hines, all of Young Clement Rivers,
LLP, of Charleston, for Respondents Bon Secours-St.
Francis Xavier Hospital, Inc. d/b/a Bon Secours St.
Francis Xavier Hospital and Roper St. Francis
Healthcare, Bon Secours St. Francis Health System, Inc.,
d/b/a Bon Secours St. Francis Xavier Hospital and Roper
St. Francis Healthcare, Roper St. Francis Healthcare,
Roper St. Francis Foundation, d/b/a Roper St. Francis
Healthcare, Roper St. Francis Healthcare, and Roper
Hospital, Inc., d/b/a Roper St. Francis Healthcare.
PER CURIAM: Arthur Peter Rowe appeals a circuit court order dismissing his
loss of consortium case under Rule 12(b)(6), SCRCP. Rowe argues the circuit
court judge erred by (1) dismissing Rowe's complaint because he did not
contemporaneously file an expert witness affidavit in compliance with sections 15-
36-100 and 15-79-125 of the South Carolina Code (Supp. 2014), (2) finding the
exception to the contemporaneous filing requirement codified in section 15-36-
100(C)(1) was inapplicable, and (3) not recusing himself. We affirm.
1. As to issues one and two, we affirm because the record does not indicate Rowe
ever filed or otherwise produced an expert witness affidavit at any time or that he
requested an extension to file an affidavit. See Rule 220(c), SCACR ("The
appellate court may affirm any ruling, order, decision or judgment upon any
ground(s) appearing in the Record on Appeal."); Wilkinson v. E. Cooper Cmty.
Hosp., Inc., 410 S.C. 163, 169-70, 763 S.E.2d 426, 430 (2014) ("On appeal from
the dismissal of a case pursuant to Rule 12(b)(6), an appellate court applies the
same standard of review as the [circuit] court. That standard requires the [c]ourt to
construe the complaint in a light most favorable to the nonmovant and determine if
the facts alleged and the inferences reasonably deducible from the pleadings would
entitle the plaintiff to relief on any theory of the case." (internal citations and
quotation marks omitted)); § 15-36-100 (governing the filing requirements for
complaints alleging professional negligence); § 15-36-100(B) (requiring a plaintiff
alleging professional negligence to submit with his complaint an expert witness
affidavit that "must specify at least one negligent act or omission claimed to exist
and the factual basis for each claim based on the available evidence at the time of
the filing of the affidavit"); § 15-36-100(C)(1) (allowing a plaintiff additional time
to file an expert affidavit after filing his complaint: forty-five days or as extended
by the circuit court upon motion); id. ("If an affidavit is not filed within the period
specified in this subsection or as extended by the [circuit] court and the defendant
against whom an affidavit should have been filed alleges, by motion to dismiss
filed contemporaneously with its initial responsive pleading that the plaintiff has
failed to file the requisite affidavit, the complaint is subject to dismissal for failure
to state a claim.").
2. We find issue three is not preserved for our review. See Ness v. Eckerd Corp.,
350 S.C. 399, 403-04, 566 S.E.2d 193, 196 (Ct. App. 2002) (stating a recusal issue
is unpreserved if the circuit court does not rule on it and the appellant does not file
a Rule 59(e), SCRCP, motion requesting a ruling).
AFFIRMED.1
THOMAS, KONDUROS, and GEATHERS, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.