A medical malpractice lawsuit is usually a pretty complex undertaking in any state, South Carolina included. First, the legal and medical issues common to these cases are notoriously complicated. And second, the plaintiff (the injured patient, or his or her legal representative) usually needs to comply with one or more procedural rules that are unique to these kinds of lawsuits. Finally, the plaintiff needs to understand how any statutory compensation limits ("damages caps") will affect a successful court case. In this article, we'll look at some key South Carolina medical malpractice laws -- specifically, the "notice of intent to file" and "expert affidavit" requirements, the lawsuit-filing deadline, and South Carolina medical malpractice damages cap.
Anyone who wants to file a medical malpractice lawsuit in South Carolina first needs to be aware of the statute of limitations, which is a law that sets a strict limit on the amount of time you have to get your case started in the state’s civil court system.
You can find this law at South Carolina Code of Laws section 15-3-545, and it says that this kind of case must be filed "within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence."
In other words, you need to file the lawsuit within three years of the date on which you were actually harmed by -- or could reasonably be expected to know that you were harmed by -- the defendant's medical error. But once six years have passed, your right to file a medical malpractice lawsuit is lost in South Carolina, even if you didn't know (and couldn't have known) you were harmed by malpractice during that time, subject to a few rare exceptions.
The most common exception to South Carolina's overarching six-year deadline is medical malpractice cases involving "the placement and inadvertent, accidental, or unintentional leaving of a foreign object in the body", such as a medical instrument or sponge after surgery. In those cases, the lawsuit must be filed within two years from the date on which the presence of the foreign object was discovered, and the larger six-year deadline does not come into play.
If the lawsuit filing deadline has passed and you try to file the complaint anyway, you can count on the defendant (the doctor or hospital you’re suing) asking the court to dismiss the case, and the court granting the motion. If that happens, that’s the end of your lawsuit. That's why it's so important to understand and comply with the medical malpractice statute of limitations.
Before filing of a medical malpractice lawsuit in South Carolina, the injured patient (usually through his or her attorney) must:
Like many states, South Carolina has a statute on the books that places a "cap" on the amount of compensation that can be awarded to a plaintiff in a medical malpractice case. In other words, even after a plaintiff proves (and the jury agrees) that the defendant committed malpractice, this law limits the actual amount of damages that the plaintiff can receive.
Before we get to what South Carolina’s medical malpractice damages law says, let's distinguish between the two main types of damages in these kinds of cases: economic and non-economic.
Economic damages typically consist of payment for past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses that can be attributed to the treatment error on which the malpractice lawsuit is based.
Non-economic damages include compensation for things like pain and suffering, emotional distress, and the loss of enjoyment of life that result from the malpractice. Non-economic damages are said to be more "subjective" from plaintiff to plaintiff, and they’re not so easy to capture with a dollar amount.
South Carolina's medical malpractice damages cap applies only to non-economic damages, and it's got a few variations. You can find the full text of the law at South Carolina Code of Laws Title 15, Chapter 32. Here are the highlights:
If you're looking for more specifics on South Carolina's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.