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NOI to File Suit with Expert Affidavit Tolled Malpractice Limitations


A woman was admitted to the hospital to undergo reconstructive breast surgery. Following the surgery, the woman experienced complications over a period of three months that required additional medical procedures.

 

The woman filed a notice of intent to file suit (NOI) against the plastic surgeon that performed the reconstructive breast surgery, the plastic surgeon's professional association, and the hospital. Because the statute of limitations was due to expire within a short period of time, the woman did not include an expert witness affidavit with the NOI, but stated that she would file one at a later date. Thirty-five days after she filed the NOI, she filed the expert witness affidavit of a board certified plastic surgeon. The parties engaged in discovery and participated in mediation.

 

Five days after an unsuccessful attempt at pre-litigation mediation, the woman filed a complaint against the defendants named in the NOI. The complaint was assigned a different case number from the NOI. The woman did not file an expert affidavit with the complaint nor did she reference the NOI or otherwise explain why she did not file an expert affidavit with the complaint.

 

The plastic surgeon, professional association, and hospital separately answered and moved to dismiss on the ground the statute of limitations had expired. They asserted the NOI did not toll the three-year statute of limitations because the woman failed to contemporaneously file an expert affidavit with the NOI pursuant to S.C. Code Ann. § 15-79-125. Therefore, they argued that the woman’s complaint, which was filed four months after the expiration of the statute of limitations, should be dismissed. Alternatively, even if the statute of limitations did not expire on the four months prior to the filing of the complaint, they claimed the woman's failure to file an expert affidavit with her complaint or within forty-five days thereafter violated S.C. Code Ann. § 15-36-100 and warranted dismissal.

 

The woman responded to the motion to dismiss arguing that because the plastic surgeon, professional association, and hospital engaged in pre-litigation mediation and did not move to dismiss the NOI during the pre-litigation proceedings, they waived any argument regarding her NOI and the expiration of the statute of limitations. Additionally, the woman argued that the failure to file an expert affidavit with her complaint did not warrant dismissal as the plastic surgeon, professional association, and hospital were already in possession of the previously filed expert witness affidavit.

 

The Charleston County Circuit Court dismissed the complaint with prejudice as untimely filed and then denied reconsideration.

 

The Supreme Court of South Carolina reversed and remanded. The court held that the NOI tolled the three-year limitations period governing suit; the woman had 60 days to file a complaint after the mediator determined that mediation had failed; separate case numbers assigned upon the filing of the NOI and then upon filing the complaint did not convert the woman's case into two separate lawsuits requiring two separate medical expert affidavits; and once the woman filed a medical expert affidavit within 45 days of filing the NOI, the woman did not have to re-file the medical expert affidavit with the complaint.

 

The NOI tolled the three-year limitations period governing the suit. The court held that a medical malpractice claimant may invoke S.C. Code Ann. § 15-36-100(C)(1), which permits the claimant to file an expert witness affidavit within 45 days after filing the NOI. The woman acted within the statutorily designated time period as she filed the expert witness affidavit 35 days after filing the NOI. As a result, the woman's properly filed NOI tolled all applicable statutes of limitations pursuant to S.C. Code Ann. § 15-79-125(A).

 

The woman had 60 days to file a complaint after the mediator determined that mediation had failed. After the NOI was properly filed, the parties strictly adhered to the pre-litigation procedures outlined in S.C. Code Ann. § 15-79-125. Specifically, the parties engaged in discovery and participated in mediation within the statutorily mandated 120-day time period. Following the failed mediation attempt, the woman initiated her civil action by filing a timely summons and complaint, as required by S.C. Code Ann. § 15–79–125(E).

 

Separate case numbers assigned upon the filing of the NOI and then upon filing the complaint did not convert the woman's case into two separate lawsuits requiring two separate medical expert affidavits. The court held that the assignment of a different case number to the pre-litigation pleadings and the litigation pleadings was of no consequence because they both comprised a single medical malpractice claim.

 

Once the woman filed a medical expert affidavit within 45 days of filing the NOI, the woman did not have to re-file the medical expert affidavit with the complaint. The court interpreted S.C. Code Ann. § 15–36–100(B), which stated

Except as provided in Section 15–79–125, in an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of South Carolina and listed in subsection (G), the plaintiff must file as part of the complaint an affidavit of an expert witness which 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.

 

The court held that the plain language of the first sentence expressly exempted a medical malpractice claimant from filing a second expert affidavit if one had already been filed with the NOI pursuant to S.C. Code Ann. §15-79-125.

 

The Supreme Court of South Carolina reversed the trial court’s dismissal of the complaint with prejudice as untimely filed.

 

See: Wilkinson v. East Cooper Community Hosp., Inc., 2014 WL 3610958 (S.C., July 23, 2014) (not designated for publication).

 

See also Medical Law Perspectives, September 2012 Report: Cosmetic Surgery Gone Wrong: High Hopes Meet Unexpected Results

 

 

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