South Carolina Medical Malpractice Laws

In a groundbreaking development for medical malpractice laws in South Carolina, plaintiffs in a 2022 case received $40.4 million in settlement money, the largest on record for a personal injury case in the state’s history.

The case involved a newborn with a misread chest X-ray. The error led to a delayed diagnosis of childhood cancer (neuroblastoma). The baby was initially diagnosed with pneumonia, but a tumor, which caused paralysis below the chest, was subsequently discovered at six months. 

Despite successful cancer treatment, severe complications arose due to the delay in diagnosis. The plaintiffs alleged that the defendants failed to identify a significant rib cage deformity in the child’s X-ray. As a result, the child developed a permanent spinal cord injury. 

The defense argued that the radiologists were not pediatric experts, so they could not have detected the problem in the X-ray. However, the plaintiff’s legal team argued that a pediatric specialist should have been present.

This landmark settlement highlights the significant impact of medical errors on patients and their families. South Carolina’s medical malpractice laws are highly complex, even for experienced lawyers in the field. This article explores medical malpractice laws in the Palmetto State, focusing on the rights and responsibilities of patients and healthcare practitioners.

What Qualifies as Medical Malpractice in South Carolina?

Medical malpractice in South Carolina is explicitly defined by state laws as the actions or omissions of a healthcare professional or institution that deviate from what an adequately cautious healthcare professional or institution would do in the same or similar situations. In essence, one may be considered a victim of medical malpractice if a medical professional fails to exercise due care in providing treatment, resulting in harm or injury.

Medical malpractice and medical negligence are interchangeable concepts under South Carolina law. However, not every incident of medical negligence necessitates the filing of a medical malpractice claim. South Carolina law requires a more stringent standard for initiating medical malpractice claims than other personal injury cases.

Plaintiffs in medical malpractice lawsuits in South Carolina are required to prove that the patient’s injuries resulted directly from the alleged negligence. This means that a negligent healthcare provider is liable only for injuries that occurred due to or became apparent after the negligent action. The South Carolina Supreme Court emphasized this requirement in its ruling in Hughes v. Children’s Clinic, stating that the plaintiff has the burden of proof in establishing negligence and causality.  

Who Can You Sue for Medical Malpractice in South Carolina?

When a patient interacts with multiple healthcare professionals for medical attention, determining responsibility when malpractice arises can be difficult. In cases of medical malpractice, parties that may be held responsible include:

• Primary care physicians

• Nurses

• Specialized doctors, such as obstetricians and pediatricians

• Pharmacists

• Medical technicians

• Residential treatment facilities

• Medical clinics or centers.

The injured patient may also file a suit against the medical organization where the negligent physician was employed or a partner. In some cases, hospitals may bear indirect liability for the negligence of their medical personnel.

Exemptions

Sovereign immunity does not apply in South Carolina, which abolished this ruling in 1986 to transition to qualified, limited liability through the SC Tort Claims Act. This means that South Carolina residents may file a lawsuit against a government entity, but only under specific conditions and for limited monetary damages.   

South Carolina has a Good Samaritan Law in place. If a person voluntarily provides emergency care to a victim during an emergency, they will not be held liable for injuries they might cause as long as they act in good faith. This legal immunity, however, does not extend to cases where the harm that the Good Samaritan has caused is a result of gross negligence or willful misconduct.

Medical Malpractice Liability Insurance Requirements

Medical malpractice liability coverage is not compulsory in South Carolina, although some hospitals and medical facilities may require it. Healthcare professionals in the state have the option to obtain coverage through the South Carolina Medical Malpractice Association. 

The coverage limits for individual medical incidents range from $1,000,000 to $3,000,000, while the annual aggregate limits range from $3,000,000 to $6,000,000. These amounts do not include the cost of legal representation. 

In addition to individual practitioners, healthcare facilities such as hospitals, urgent care centers, free medical clinics, and outpatient surgery centers are eligible for coverage. 

What is the Statute of Limitations in South Carolina for Medical Malpractice Cases?

A three-year statute of limitations generally applies to medical malpractice claims in South Carolina. The legal system imposes this time constraint to ensure reliable evidence is available to support the claim. Additionally, South Carolina has a statute of repose, which bars any medical malpractice claim against a healthcare provider if more than six years have passed since the injury occurred, regardless of when it was discovered. 

Discovery Rule for South Carolina Medical Malpractice Claims

The statute of limitations in South Carolina begins to run only after an injury is discovered or reasonably should have been discovered. This is commonly referred to as the discovery rule.

In certain circumstances, it is possible for an individual to lack a reasonable means of knowing or recognizing that a physician has caused them harm, particularly when the injury is not immediately apparent. In such cases, the clock does not immediately begin counting toward the three-year time limit. Instead, extra time is granted to file a medical malpractice claim if the injury is discovered at a later time.

For example, an individual experiences medical complications because a surgical glove was inadvertently left inside his body and was not discovered after four years. In this type of scenario, South Carolina law affords a time frame of three years from the date of discovery or the date when discovery should have reasonably occurred to initiate a medical malpractice claim.

Statute of Limitations for Minor Patients

A different statute of limitations governs medical malpractice claims involving minor patients, in contrast to the three-year period that is generally applicable for such claims. The statute of limitations is tolled if the injured party was underage at the time of the alleged negligence; however, the time frame for filing a lawsuit cannot be extended past seven years from the date of the alleged negligent act. 

The statute of limitations is also tolled indefinitely when a parent or guardian and the defendant's health insurance or health care provider engage in fraud or conspiracy in the failure to pursue an action on behalf of the minor.

What Do You Need to Prove in a South Carolina Medical Malpractice Case?

To establish a medical malpractice claim in South Carolina, the following elements must be proven:

• The healthcare professional had a duty of care to the patient.

• The healthcare professional failed to fulfill their duty of care.

• The patient sustained an injury as a direct consequence of the breach of duty of care.

• The patient suffered damages such as financial consequences, worsened physical conditions, or emotional pain.   

Notice of Intent to File a Lawsuit

Before filing a medical malpractice claim in South Carolina, the patient must first submit a Notice of Intent to File a Lawsuit. This document serves as a notification of one’s intent to pursue legal action.

All opposing parties must be named as defendants in the notice. The plaintiff or their attorney must sign the notice and include standard interrogatories or comparable disclosures following the South Carolina Rules of Civil Procedure. The notice must also provide a concise and clear statement of the facts, demonstrating the person filing the claim is entitled to compensation.

Expert Witnesses for South Carolina Medical Malpractice Claims

In medical malpractice cases, expert testimony plays a crucial role in helping jurors determine whether the physician followed or breached the acceptable standard of care. South Carolina has specific requirements for individuals who wish to qualify as expert witnesses. 

According to South Carolina Rules of Evidence, Rule 702, an expert witness must have the appropriate qualifications, including education, specialized certifications, and experience, to testify within their specific field of expertise.  

 An expert witness is required to submit a written report before testifying in court. This report should contain a concise summary of their opinions, along with the underlying reasons for these opinions. All exhibits or materials that the expert witness has used to form their opinions must also be included. 

The report must be handed out to all relevant parties involved in the case before the trial and within a specific timeframe. This will allow both the plaintiff and the defendant to thoroughly examine the report and adequately prepare their cases.

South Carolina Unanticipated Medical Outcome Reconciliation Act

South Carolina has its own version of the “I’m Sorry” Law, which provides strong protection for healthcare workers. Under this law, remarks by medical professionals that may be construed as an acknowledgment of error or mistake are inadmissible as evidence in a medical malpractice lawsuit.

Nonetheless, experienced medical malpractice lawyers think that expressions of contrition or sympathy may be helpful for plaintiffs. Lawyers often point out that when a patient receives an apology or a statement of sympathy from a medical professional, it may serve as a red flag that someone has made a mistake. It can then prompt an injured patient to seek legal counsel to investigate the circumstances that led to their injury.

South Carolina Adult Health Care Consent Act

South Carolina’s Adult Health Care Consent Act applies to patients who are unable to provide consent due to their inability to understand their condition, make informed decisions about their healthcare, or clearly communicate their choices. In such cases, the law typically allows the patient’s spouse, guardian, or an individual with a healthcare power of attorney to give consent on the patient’s behalf. 

In the context of medical care, it is typical for parents to provide consent for the treatment of their minor children. However, in South Carolina, individuals who are 16 years of age or older may grant or withhold consent for medical treatment, excluding procedures such as surgery that are deemed absolutely necessary.

In emergency cases, such as when it is necessary to preserve a life or alleviate a patient’s distress, a physician may typically act without further consent. To substantiate a medical malpractice claim based on the lack of informed consent, two key elements must be established:

• The patient did not receive adequate information regarding the medical procedure or treatment that ultimately led to the injury.

• The injury would not have occurred had the patient been properly informed, as they would have chosen to refuse the treatment.

How Much Can You Sue for Medical Malpractice in South Carolina?

When suing for medical malpractice, there is no set amount for compensation. The severity of each case typically determines the value of the settlement, and because there are so many variables, both economic and non-economic, it can be challenging to determine the appropriate amount of damages. 

Attorneys who specialize in medical malpractice cases can help their clients calculate and obtain fair compensation for their injuries, even if it seems impossible to put a price tag on the suffering of a victim of medical malpractice.

Types of Damages

Plaintiffs in medical malpractice lawsuits may recover the following types of damages:

• Economic damages, which refer to monetary losses such as loss of earnings and medical expenses;

• Non-economic damages, which are non-quantifiable damages caused by the injury (e.g., mental anguish, pain and suffering, and loss of companionship).

• Punitive damages, which serve to punish the defendant and can only be awarded if there is evidence that the defendant’s actions were careless, malicious, or deliberate (e.g. when a hospital refused to take action even after a physician’s repeated acts of malpractice).

Economic damages in medical malpractice cases are not subject to any specific limit, provided the plaintiff can substantiate their expenses with evidence. These may include medical bills and records, pay stubs, and expense receipts, which can bolster the monetary worth of a plaintiff’s claim.  

The limit on non-economic damages for each healthcare provider held liable in a lawsuit is set at $350,000. Regardless of the number of providers found responsible for a medical malpractice incident, non-economic damages cannot exceed $1.05 million. Depending on changes in the Consumer Price Index, these caps may be adjusted at the end of each fiscal year.

Punitive damages for medical malpractice claims are capped at three times the value of compensatory damages or $500,000, whichever is higher.

Negligence System

South Carolina acknowledges and upholds the doctrine of modified comparative fault. This legal concept allows the court to allocate a specific percentage of liability to each party involved in a lawsuit according to evidence. Thus, any monetary compensation awarded to the plaintiff is diminished proportionally based on the degree of fault attributed to them. 

According to the state’s 51% rule, a plaintiff can only be awarded damages for an injury if the court finds that the plaintiff bears 50% or less of the liability for his injury. Put simply, to be eligible for monetary compensation, a plaintiff must not have caused the injury more than the medical practitioner that they are suing.

Methods of Obtaining Compensation

Before going to trial, parties involved in a medical malpractice lawsuit must participate in mediation, according to the South Carolina Circuit Court Alternative Dispute Resolution Rules. In addition, the parties may choose alternative dispute resolution methods, such as binding or non-binding arbitration. The purpose of ADR is to create a favorable environment for reaching a mutually agreeable settlement. 

If the parties cannot agree on a settlement, the lawsuit will go to civil court. During the trial, a “trier of fact,” who can be a person or a group of persons, will listen to testimonies and review all the presented evidence to make a ruling. Either a judge or a jury may decide on a medical malpractice case. In a jury trial, the judge gives instructions to the jurors, who will then deliberate the case and reach a verdict.

How Much Does It Cost to Pursue a Medical Malpractice Case in South Carolina?

Pursuing a medical malpractice case can be expensive, considering that it requires expert witnesses. These types of witnesses, especially in the scientific and technical fields, are paid based on the time they spend on a case. 

Medical experts charge between $350 and $500 per hour to help with a case. This price tag goes even higher if they are required to testify in a trial. Expert witnesses charge between $2,500 and $4,000 per day for fees associated with travel and testimony time.

Most personal injury lawyers, including those who specialize in medical malpractice, operate on a contingency fee basis. In South Carolina, it is common for attorneys to charge one-third of the recovered amount in the event of a settlement. If the case goes to civil court, the customary fee increases to 40%. 

South Carolina law does not have any specific limits on attorney fees for medical malpractice cases. However, a lawyer is not allowed to agree to, charge, or receive an unreasonable fee or amount in accordance with the South Carolina Rules of Professional Conduct. 

Resources for Medical Malpractice Victims in South Carolina

South Carolina Bar

The mission of the South Carolina Bar Pro Bono Program, a private, nonprofit organization, is to promote and support local attorneys in providing free legal assistance for civil matters. To be eligible for the program, it is necessary to meet the federally established poverty guidelines. You can contact 1-800-395-3425 for more information.  

South Carolina Office of Disciplinary Counsel

The Office of Disciplinary Counsel screens and investigates complaints against judges and lawyers to regulate their conduct, maintain the integrity of the South Carolina judicial system, and build public trust in the administration of justice. Citizens may send their complaints in PDF format to ODCmail@sccourts.org. 

Charleston Legal Access

Charleston Legal Access is South Carolina’s only nonprofit law firm that offers sliding-scale fees. The organization focuses on providing legal assistance to individuals and families who do not qualify for free legal services but are unable to afford a private attorney. Contact the organization by email at info@charlestonlegalaccess.org or by phone at (843) 640-5980.