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A32, R33, S83
STATUS INFORMATION
General Bill
Sponsors: Senators McConnell, Moore, Campsen, Ryberg, O'Dell, Elliott, Alexander, Gregory, Leatherman, Richardson and Bryant
Document Path: l:\s-jud\bills\mcconnell\jud0038.gfm.doc
Introduced in the Senate on January 11, 2005
Introduced in the House on February 22, 2005
Last Amended on March 17, 2005
Passed by the General Assembly on March 29, 2005
Governor's Action: April 4, 2005, Signed
Summary: Tort Reform Act of 2005 Relating to Medical Malpractice
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/15/2004 Senate Prefiled
12/15/2004 Senate Referred to Committee on Judiciary
1/11/2005 Senate Introduced and read first time SJ-123
1/11/2005 Senate Referred to Committee on Judiciary SJ-123
2/2/2005 Senate Committee report: Majority favorable with amend.,
minority unfavorable Judiciary SJ-24
2/3/2005 Senate Special order SJ-23
2/3/2005 Scrivener's error corrected
2/8/2005 Senate Debate interrupted SJ-30
2/9/2005 Senate Debate interrupted SJ-26
2/10/2005 Senate Debate interrupted SJ-25
2/15/2005 Senate Debate interrupted SJ-16
2/16/2005 Senate Amended SJ-19
2/16/2005 Senate Read second time SJ-19
2/16/2005 Senate Unanimous consent for third reading on next legislative
day SJ-19
2/17/2005 Senate Read third time and sent to House SJ-15
2/17/2005 Scrivener's error corrected
2/22/2005 House Introduced and read first time HJ-5
2/22/2005 House Referred to Committee on Judiciary HJ-6
3/2/2005 House Committee report: Favorable with amendment Judiciary HJ-3
3/3/2005 House Amended HJ-30
3/3/2005 House Read second time HJ-48
3/3/2005 House Unanimous consent for third reading on next legislative
day HJ-48
3/4/2005 House Read third time and returned to Senate with amendments
HJ-3
3/17/2005 Senate House amendment amended SJ-68
3/17/2005 Senate Returned to House with amendments SJ-68
3/21/2005 Scrivener's error corrected
3/29/2005 House Concurred in Senate amendment and enrolled HJ-25
3/31/2005 Ratified R 33
4/4/2005 Signed By Governor
4/6/2005 Copies available
4/6/2005 Effective date See Act for Effective Date
4/13/2005 Act No. 32
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
12/15/2004
2/2/2005
2/3/2005
2/16/2005
2/17/2005
3/2/2005
3/3/2005
3/17/2005
3/21/2005
3/21/2005-A
(A32, R33, S83)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 3, CHAPTER 32 TO TITLE 15 SO AS TO ENACT THE "SOUTH CAROLINA NONECONOMIC DAMAGES AWARDS ACT OF 2005", TO DEFINE KEY TERMS, TO ESTABLISH PROCEDURES GOVERNING THE AWARDING OF NONECONOMIC DAMAGES SUCH AS PAIN AND SUFFERING, TO LIMIT THE AMOUNT OF AN AWARD FOR NONECONOMIC DAMAGES TO THREE HUNDRED FIFTY THOUSAND DOLLARS FOR EACH CLAIMANT, AND TO PROVIDE FOR EXCEPTIONS; BY ADDING SECTION 15-35-400, SO AS TO PROVIDE FOR OFFERS OF JUDGMENT AFTER COMMENCEMENT OF A CIVIL ACTION BASED ON CONTRACT OR SEEKING THE RECOVERY OF MONEY DAMAGES AND TO PROVIDE FOR CONSEQUENCES OF NONACCEPTANCE; BY ADDING SECTION 15-36-100, SO AS TO ESTABLISH STANDARDS FOR EXPERT WITNESSES IN PROFESSIONAL MALPRACTICE ACTIONS; BY ADDING CHAPTER 79 TO TITLE 15 SO AS TO DEFINE KEY TERMS, PROVIDE FOR MANDATORY MEDIATION, AND TO PERMIT BINDING ARBITRATION IN MEDICAL MALPRACTICE ACTIONS; BY ADDING SECTION 38-79-40, SO AS TO PROHIBIT A PERSON SERVING ON THE BOARD OF THE JOINT UNDERWRITING ASSOCIATION OR THE BOARD OF GOVERNORS OF THE PATIENTS' COMPENSATION FUND FROM BEING EMPLOYED OR COMPENSATED BY EITHER OF THESE AGENCIES; BY ADDING SECTION 38-79-155 SO AS TO REQUIRE MEDICAL MALPRACTICE INSURANCE CARRIERS TO PROVIDE AND MAINTAIN COVERAGE TO QUALIFIED LICENSED HEALTH CARE PROVIDERS; TO AMEND SECTION 38-79-460, RELATING TO THE PATIENTS' COMPENSATION FUND, SO AS TO PROVIDE THAT THE FUND SHALL BE MANAGED BY THE BOARD OF GOVERNORS RATHER THAN THE STATE TREASURER; TO AMEND SECTION 38-79-470, RELATING TO THE PATIENTS' COMPENSATION FUND, SO AS TO PROVIDE THAT MONEY IS TO BE WITHDRAWN FROM THE FUND UPON SIGNATURE OF THE CHAIRMAN OF THE BOARD OF GOVERNORS; TO AMEND SECTION 40-47-200, RELATING TO SUSPENSION OR REVOCATION OF A LICENSE TO PRACTICE MEDICINE OR OSTEOPATHY, SO AS TO REQUIRE NOTIFICATION TO THE PERSON'S LAST KNOWN EMPLOYER AND TO ANY PLACE WHERE THE PERSON HAS PRIVILEGES TO PRACTICE MEDICINE; TO AMEND SECTION 40-47-211, RELATING TO THE BOARD OF MEDICAL EXAMINERS, SO AS TO INCREASE THE MEMBERSHIP OF THE BOARD FROM THIRTY-SIX TO FORTY-EIGHT MEMBERS AND TO PROVIDE FOR LAY MEMBERS IN ADDITION TO THIRTY-SIX LICENSED PHYSICIANS; TO AMEND SECTION 40-71-10, AS AMENDED, RELATING TO MEMBERS OF PROFESSIONAL COMMITTEES EXEMPT FROM TORT LIABILITY, SO AS TO ADD THAT A MEMBER OF A PROFESSIONAL COMMITTEE IS NOT LIABLE FOR DAMAGES IN AN ACTION FOR RESTRAINT OF TRADE, A VIOLATION OF THE SOUTH CAROLINA UNFAIR TRADE PRACTICES ACT, OR ANOTHER ACTION BASED ON UNFAIR OR ILLEGAL COMPETITION UNLESS THE MEMBER ACTED WITH MALICE; BY ADDING SECTION 40-71-30, SO AS TO ALLOW CONFIDENTIAL DOCUMENTS TO BE FILED UNDER SEAL WITH THE CIRCUIT COURT WITH JURISDICTION OVER THE PENDING ACTION; AND TO AMEND SECTION 15-38-15, RELATING TO CIVIL LIABILITY, SO AS TO PROVIDE THAT INCLUSION OF ANY PERCENTAGE OF THE PLAINTIFF'S FAULT SHALL NOT REDUCE THE AMOUNT OF THE PLAINTIFF'S RECOVERABLE DAMAGES.
Be it enacted by the General Assembly of the State of South Carolina:
General Assembly findings
SECTION 1. The General Assembly finds that the sections presented in this act constitute one subject as required by Article III, Section 17 of the South Carolina Constitution, in particular finding that each change and each topic relates directly to or in conjunction with other sections to the subject of tort and other civil action reform as clearly enumerated in the title.
The General Assembly further finds that a common purpose or relationship exists among the sections, representing a potential plurality but not disunity of topics, notwithstanding that reasonable minds might differ in identifying more than one topic contained in the act.
Noneconomic damages
SECTION 2. Title 15 of the 1976 Code is amended by adding:
Section 15-32-200. This article may be cited as the 'South Carolina Noneconomic Damage Awards Act of 2005'.
Section 15-32-210. As used in this article, unless the context clearly requires otherwise:
(1) 'Ambulatory surgical facility' means a licensed, distinct, freestanding, self-contained entity that is organized, administered, equipped, and operated exclusively for the purpose of performing surgical procedures or related care, treatment, procedures, and/or services, by licensed health care providers, for which patients are scheduled to arrive, receive surgery or related care, treatment, procedures, and/or services, and be discharged on the same day. This term does not include abortion clinics.
(2) 'Claimant' means the person suffering personal injury.
(3) 'Economic damages' means pecuniary damages arising from medical expenses and medical care, rehabilitation services, costs associated with education, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, a claim for loss of spousal services, loss of employment, loss of business or employment opportunities, loss of retirement income, and other monetary losses.
(4) 'Health care institution' means an ambulatory surgical facility, a hospital, an institutional general infirmary, a nursing home, and a renal dialysis facility.
(5) 'Health care provider' means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity.
(6) 'Hospital' means a licensed facility with an organized medical staff to maintain and operate organized facilities and services to accommodate two or more nonrelated persons for the diagnosis, treatment, and care of such persons over a period exceeding twenty-four hours and provides medical and surgical care of acute illness, injury, or infirmity and may provide obstetrical care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina. This term includes a hospital that provides specialized service for one type of care, such as tuberculosis, maternity, or orthopedics.
(7) 'Institutional general infirmary' means a licensed facility which is established within the jurisdiction of a larger nonmedical institution and which maintains and operates organized facilities and services to accommodate two or more nonrelated students, residents, or inmates with illness, injury, or infirmity for a period exceeding twenty-four hours for the diagnosis, treatment, and care of such persons and which provides medical, surgical, and professional nursing care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina.
(8) 'Medical malpractice' means doing that which the reasonably prudent health care provider or health care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances.
(9) 'Noneconomic damages' means nonpecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury.
(10) 'Nursing home' means a licensed facility with an organized nursing staff to maintain and operate organized facilities and services to accommodate two or more unrelated persons over a period exceeding twenty-four hours which is operated either in connection with a hospital or as a freestanding facility for the express or implied purpose of providing skilled nursing services for persons who are not in need of hospital care. This term does not include assisted living, independent living, or community residential care facilities that do not provide skilled nursing services.
(11) 'Personal injury' means injuries to the person including, but not limited to, bodily injuries, mental distress or suffering, loss of wages, loss of services, loss of consortium, wrongful death, survival, and other noneconomic damages and actual economic damages.
(12) 'Personal injury action' means an action for personal injury, including a wrongful death action pursuant to Sections 15-51-10 through 15-51-60 and a survival action pursuant to Section 15-5-90.
(13) 'Renal dialysis facility' means an outpatient facility which offers staff assisted dialysis or training and supported services for self-dialysis to end-stage renal disease patients.
(14) 'Skilled nursing services' means services that:
(a) are ordered by a physician;
(b) require the skills of technical or professional personnel such as registered nurses, licensed practical (vocational) nurses, physical therapists, occupational therapists, and speech pathologists or audiologists; and
(c) are furnished directly by, or under the supervision of such personnel.
Section 15-32-220. (A) In an action on a medical malpractice claim when final judgment is rendered against a single health care provider, the limit of civil liability for noneconomic damages of the health care provider is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant, regardless of the number of separate causes of action on which the claim is based, except as provided in subsection (E).
(B) In an action on a medical malpractice claim when final judgment is rendered against a single health care institution, the limit of civil liability for noneconomic damages is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant, regardless of the number of separate causes of action on which the claim is based, except as provided in subsection (E).
(C) In an action on a medical malpractice claim when final judgment is rendered against more than one health care institution, or more than one health care provider, or any combination thereof, the limit of civil liability for noneconomic damages for each health care institution and each health care provider is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant, and the limit of civil liability for noneconomic damages for all health care institutions and health care providers is limited to an amount not to exceed one million fifty thousand dollars for each claimant, except as provided in subsection (E).
(D)(1) The provisions of this section do not limit the amount of compensation for economic damages suffered by each claimant in a medical malpractice claim.
(2) The provisions of this section do not limit the amount of punitive damages in cases where the plaintiff is able to prove an entitlement to an award of punitive damages as required by law.
(E) The limitations for noneconomic damages rendered against any health care provider do not apply if the jury or court determines that the defendant was grossly negligent, wilful, wanton, or reckless, and such conduct was the proximate cause of the claimant's noneconomic damages, or if the defendant has engaged in fraud or misrepresentation related to the claim, or if the defendant altered or destroyed medical records with the purpose of avoiding a claim or liability to the claimant.
(F) At the end of each calendar year, the State Budget and Control Board, Board of Economic Advisors must determine the increase or decrease in the ratio of the Consumer Price Index to the index as of December 31 of the previous year, and the limitation on compensation for noneconomic damages pursuant to subsection (A), (B), or (C) must be increased or decreased accordingly. As soon as practicable after this adjustment is calculated, the Director of the State Budget and Control Board shall submit the revised limitation on compensation to the State Register for publication pursuant to Section 1-23-40(2), and the revised limitation becomes effective upon publication in the State Register. For purposes of this subsection, 'Consumer Price Index' means the Consumer Price Index for All Urban Consumers as published by the United States Department of Labor, Bureau of Labor Statistics.
Section 15-32-230. (A) In an action involving a medical malpractice claim arising out of care rendered in a genuine emergency situation involving an immediate threat of death or serious bodily injury to the patient receiving care in an emergency department or in an obstetrical or surgical suite, no physician may be held liable unless it is proven that the physician was grossly negligent.
(B) In an action involving a medical malpractice claim arising out of obstetrical care rendered by a physician on an emergency basis when there is no previous doctor/patient relationship between the physician or a member of his practice with a patient or the patient has not received prenatal care, such physician is not liable unless it is proven such physician is grossly negligent.
(C) The limitation on physician liability established by subsections (A) and (B) shall only apply if the patient is not medically stable and: (1) in immediate threat of death; or
(2) in immediate threat of serious bodily injury.
Further, the limitation on physician liability established by subsections (A) and (B) shall only apply to care rendered prior to the patient's discharge from the emergency department or obstetrical or surgical suite.
Section 15-32-240. The provisions of this article do not affect any right, privilege, or provision of the South Carolina Tort Claims Act pursuant to Chapter 78, Title 15 or the South Carolina Solicitation of Charitable Funds Act as contained in Chapter 56, Title 33."
Civil action, judgments, offer of judgment, nonacceptance
SECTION 3. Article 3, Chapter 35, Title 15 of the 1976 Code is amended by adding:
"Section 15-35-400. (A) Offer of Judgment. Except in domestic relations actions, after commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, any party may, at any time more than twenty days before the actual trial date, file with the clerk of the court a written offer of judgment signed by the offeror or his attorney, directed to the opposing party, offering to take judgment in the offeror's favor, or as the case may be, to allow judgment to be taken against the offeror, for a sum stated therein, for property, or to the effect specified in the offer. The offeror shall give notice of the offer of judgment to the offeree's attorney, or if the offeree is not represented by an attorney, to the offeree himself, in accordance with the service rules for motions and other pleadings set forth in the South Carolina Rules of Civil Procedure. Within twenty days after notification, or at least ten days prior to the trial date, whichever date is earlier, the offeree or his attorney may file with the clerk of the court a written acceptance of the offer of judgment. Upon the filing, the clerk shall enter immediately judgment of the stipulation. If the offer of judgment is not accepted within twenty days after notification or prior to or on the tenth day before the actual trial date, whichever date occurs first, the offer shall be considered rejected and evidence thereof is not to be admissible except in a proceeding after the trial to fix costs, interests, attorney's fees, and other recoverable monies. Any offeror may withdraw an offer of judgment prior to its acceptance or prior to the date on which it would be considered rejected by giving notice to the offeree or his attorney in accordance with the service rules for motions and other pleadings outlined in the South Carolina Rules of Civil Procedure. Any offeror may file a subsequent offer of judgment in any amount provided that the subsequent offer supersedes any earlier offer that was rejected by the offeree or withdrawn by the offeror, and, on filing, terminates any rights of interest or costs that may have been applicable to the superseded offer. Notwithstanding this provision, an offer is not considered rejected upon the making of a counteroffer by the offeree, but shall remain effective until accepted, rejected, or withdrawn as provided in this subsection. Any and all offers of judgment and any acceptance of offers of judgment must be included by the clerk in the record of the case.
(B) Consequences of NonAcceptance. If an offer of judgment is not accepted and the offeror obtains a verdict or determination at least as favorable as the rejected offer, the offeror shall be allowed to recover from the offeree: (1) any administrative, filing, or other court costs from the date of the offer until judgment; (2) if the offeror is a plaintiff, eight percent interest computed on the amount of the verdict or award from the date of the offer; or (3) if the offeror is a defendant, a reduction from the judgment or award of eight percent interest computed on the amount of the verdict or award from the date of the offer.
(C) This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney's fees or other monies in accordance with the provisions of any written contract between the parties to the action."
Civil procedure, frivolous civil proceedings, expert witness
SECTION 4. Chapter 36, Title 15 of the 1976 Code is amended by adding:
"Section 15-36-100. (A) As used in this section, 'expert witness' means an expert who is qualified as to the acceptable conduct of the 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).
(B) 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.
(C)(1) The contemporaneous filing requirement of subsection (B) does not apply to any case in which the period of limitation will expire, or there is a good faith basis to believe it will expire on a claim stated in the complaint, within ten days of the date of filing and, because of the time constraints, the plaintiff alleges that an affidavit of an expert could not be prepared. In such a case, the plaintiff has forty-five days after the filing of the complaint to supplement the pleadings with the affidavit. Upon motion, the trial court, after hearing and for good cause, may extend the time as the court determines justice requires. If an affidavit is not filed within the period specified in this subsection or as extended by the trial 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. The filing of a motion to dismiss pursuant to this section, shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.
(2) The contemporaneous filing requirement of subsection (B) is not required to support a pleaded specification of negligence involving subject matter that lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.
(D) This section does not extend an applicable period of limitation, except that, if the affidavit is filed within the period specified in this section, the filing of the affidavit after the expiration of the statute of limitations is considered timely and provides no basis for a statute of limitations defense.
(E) If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed contemporaneously with its initial responsive pleading, that the affidavit is defective, the plaintiff's complaint is subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment within thirty days of service of the motion alleging that the affidavit is defective. The trial court may, in the exercise of its discretion, extend the time for filing an amendment or response to the motion, or both, as the trial court determines justice requires. The filing of a motion to dismiss pursuant to this section shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.
(F) If a plaintiff fails to file an affidavit as required by this section, and the defendant raises the failure to file an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, the complaint is not subject to renewal after the expiration of the applicable period of limitation unless a court determines that the plaintiff had the requisite affidavit within the time required pursuant to this section and the failure to file the affidavit is the result of a mistake. The filing of a motion to dismiss pursuant to this section shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.
(G) This section applies to the following professions:
( 1) architects;
( 2) attorneys at law;
( 3) certified public accountants;
( 4) chiropractors;
( 5) dentists;
( 6) land surveyors;
( 7) medical doctors;
( 8) marriage and family therapists;
( 9) nurses;
(10) occupational therapists;
(11) optometrists;
(12) osteopathic physicians;
(13) pharmacists;
(14) physical therapists;
(15) physicians' assistants;
(16) professional counselors;
(17) professional engineers;
(18) podiatrists;
(19) psychologists;
(20) radiological technicians;
(21) respiratory therapists; and
(22) veterinarians."
Medical malpractice actions, mediation, arbitration
SECTION 5. Title 15 of the 1976 Code is amended by adding:
Section 15-79-110. As used in this chapter:
(1) 'Ambulatory surgical facility' means a licensed, distinct, freestanding, self-contained entity that is organized, administered, equipped, and operated exclusively for the purpose of performing surgical procedures or related care, treatment, procedures, and/or services, by licensed health care providers, for which patients are scheduled to arrive, receive surgery or related care, treatment, procedures, and/or services, and be discharged on the same day. This term does not include abortion clinics.
(2) 'Health care institution' means an ambulatory surgical facility, a hospital, an institutional general infirmary, a nursing home, and a renal dialysis facility.
(3) 'Health care provider' means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or any similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity.
(4) 'Hospital' means a licensed facility with an organized medical staff to maintain and operate organized facilities and services to accommodate two or more nonrelated persons for the diagnosis, treatment, and care of such persons over a period exceeding twenty-four hours and provides medical and surgical care of acute illness, injury, or infirmity and may provide obstetrical care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina. This term includes a hospital that provides specialized service for one type of care, such as tuberculosis, maternity, or orthopedics.
(5) 'Institutional general infirmary' means a licensed facility which is established within the jurisdiction of a larger nonmedical institution and which maintains and operates organized facilities and services to accommodate two or more nonrelated students, residents, or inmates with illness, injury, or infirmity for a period exceeding twenty-four hours for the diagnosis, treatment, and care of such persons and which provides medical, surgical, and professional nursing care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina.
(6) 'Medical malpractice' means doing that which the reasonably prudent health care provider or health care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances.
(7) 'Nursing home' means a licensed facility with an organized nursing staff to maintain and operate organized facilities and services to accommodate two or more unrelated persons over a period exceeding twenty-four hours which is operated either in connection with a hospital or as a freestanding facility for the express or implied purpose of providing skilled nursing services for persons who are not in need of hospital care. This term does not include assisted living, independent living, or community residential care facilities that do not provide skilled nursing services.
(8) 'Renal dialysis facility' means an outpatient facility which offers staff assisted dialysis or training and supported services for self-dialysis to end-stage renal disease patients.
(9) 'Skilled nursing services' means services that:
(a) are ordered by a physician;
(b) require the skills of technical or professional personnel such as registered nurses, licensed practical (vocational) nurses, physical therapists, occupational therapists, and speech pathologists or audiologists; and
(c) are furnished directly by, or under the supervision of such personnel.
Section 15-79-120. At any time before a medical malpractice action is brought to trial, the parties shall participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules in effect at the time for the State or any portion of the State. Parties may also agree to participate in binding arbitration.
Section 15-79-125. (A) Prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness, subject to the affidavit requirements established in Section 15-36-100, in a county in which venue would be proper for filing or initiating the civil action. The notice must name all adverse parties as defendants, must contain a short and plain statement of the facts showing that the party filing the notice is entitled to relief, must be signed by the plaintiff or by his attorney, and must include any standard interrogatories or similar disclosures required by the South Carolina Rules of Civil Procedure. Filing the Notice of Intent to File Suit tolls all applicable statutes of limitations. The Notice of Intent to File Suit must be served upon all named defendants in accordance with the service rules for a summons and complaint outlined in the South Carolina Rules of Civil Procedure.
(B) After the Notice of Intent to File Suit is filed and served, all named parties may subpoena medical records and other documents potentially related to the medical malpractice claim pursuant to the rules governing the service and enforcement of subpoenas outlined in the South Carolina Rules of Civil Procedure. Upon leave of court, the named parties also may take depositions pursuant to the rules governing discovery outlined in the South Carolina Rules of Civil Procedure.
(C) Within ninety days and no later than one hundred twenty days from the service of the Notice of Intent to File Suit, the parties shall participate in a mediation conference unless an extension for no more than sixty days is granted by the court based upon a finding of good cause. Unless inconsistent with this section, the Circuit Court Alternative Dispute Resolution Rules in effect at the time of the mediation conference for all or any part of the State shall govern the mediation process, including compensation of the mediator and payment of the fees and expenses of the mediation conference. The parties otherwise are responsible for their own expenses related to mediation pursuant to this section.
(D) The circuit court has jurisdiction to enforce the provisions of this section.
(E) If the matter cannot be resolved through mediation, the plaintiff may initiate the civil action by filing a summons and complaint pursuant to the South Carolina Rules of Civil Procedure. The action must be filed:
(1) within sixty days after the mediator determines that the mediation is not viable, that an impasse exists, or that the mediation should end; or
(2) prior to expiration of the statute of limitations, whichever is later.
(F) Participation in the prelitigation mediation pursuant to this section does not alter or eliminate any obligation of the parties to participate in alternative dispute resolution after the civil action is initiated. However, there is no requirement for participation in more than one alternative dispute resolution forum following the filing of a summons and complaint to initiate a civil action in the matter.
Section 15-79-130. If a judge finds that an expert health care provider or health care institution in a medical malpractice action in this State has offered testimony or evidence in bad faith or without a reasonable basis in fact or otherwise acted unethically in conjunction with testifying as an expert in deposition or at trial, the judge must report the expert to the state entity that licenses and regulates the profession of the expert or the type of health care entity represented by the expert."
Insurance, medical malpractice, Joint Underwriting Association, Board of Governors of Patients' Compensation Fund
SECTION 6. Article 1, Chapter 79, Title 38 of the 1976 Code is amended by adding:
"Section 38-79-40. (A) A person who serves on the Board of the Joint Underwriting Association or the Board of Governors of the Patients' Compensation Fund is prohibited from being employed in any manner or compensated by the Joint Underwriting Association or the Patients' Compensation Fund, and this prohibition continues for one year after the person ceases to be a member of the board.
(B) No provision of this section may be construed to prohibit an insurance agent from selling insurance products from the association or from receiving commissions as a result of selling insurance products from the association."
Insurance, medical malpractice, coverage of licensed health care providers
SECTION 7. Article 3, Chapter 79, Title 38 of the 1976 Code is amended by adding:
"Section 38-79-155. (A) All medical malpractice insurance carriers issuing policies of insurance within South Carolina for licensed health care providers, as defined in Section 38-79-410, shall provide and maintain coverage to all qualified applicants who timely remit payments for the coverage period and who meet and comply with all underwriting criteria of the policy and with applicable federal and state statutes and regulations.
(B) Such policies shall be written on either a 'claims-made' or 'occurrence' basis in compliance with the standard set by the Board of Directors of the Joint Underwriters Association pursuant to Section 38-79-190.
(C) The provisions of this section apply only to policies written on or after January 1, 2006."
Insurance, Patients' Compensation Fund, management
SECTION 8. Section 38-79-460 of the 1976 Code is amended to read:
"Section 38-79-460. The fund, and any income from it, must be managed by the board according to its plan of operation developed pursuant to Section 38-79-430."
Insurance, Patients' Compensation Fund, withdrawal of funds
SECTION 9. Section 38-79-470(1) of the 1976 Code is amended to read:
"(1) Monies may be withdrawn from the fund only upon the signature of the Chairman of the Board of Governors or his designee."
Professions and occupations, physicians, suspension or revocation of license, notification
SECTION 10. Section 40-47-200 of the 1976 Code is amended by adding:
"(K) If a person's license is suspended, reissued, or reinstated by any South Carolina board for any reason, it shall report that action to the licensee's last known employer and, if applicable, to any place where the person has been granted privileges to practice medicine."
Professions and occupations, physicians, Medical Disciplinary Commission, membership
SECTION 11. Section 40-47-211 of the 1976 Code is amended to read:
"Section 40-47-211. (A) There is created the Medical Disciplinary Commission of the State Board of Medical Examiners to be composed of forty-eight members. Of these, thirty-six must be licensed physicians practicing their profession. Five physician commissioners must be elected from each of the six congressional districts, and six physician members of the commission must be elected at large from across the State. The board shall conduct the elections, and the elections for the physician members shall provide for participation by any physician currently licensed and actively practicing medicine in South Carolina and residing in the congressional district in which the election is held. At-large physician members must be currently licensed and actively practicing medicine in South Carolina and must reside within the State at the time of election and throughout their terms. One physician commissioner initially elected from each district shall serve for a term of one year and until his successor is elected and qualifies, one physician commissioner initially elected from each district shall serve for a term of two years and until his successor is elected and qualifies, and one physician commissioner initially elected from each district shall serve for a term of three years and until his successor is elected and qualifies. The successors of the initial physician commissioners shall serve for terms of three years or until their successors are elected and qualify. The members of the commission are limited to three terms. The members appointed to the board may not simultaneously serve as a commissioner. In case of any vacancy by way of death, resignation, or otherwise, the board shall appoint a successor to serve for the unexpired term. Where justice, fairness, or other circumstances so require, the board may appoint past commissioners to hear complaints in individual cases.
(B) Twelve members of the commission must be lay commissioners who each must have, at a minimum, a baccalaureate degree or the equivalent, and have no ascertainable ties to the health care industry. Two lay commissioners must be appointed by the Governor from each of the six congressional districts, with the advice and consent of the Senate. Each lay commissioner must be a registered voter and reside in the congressional district he represents throughout his term. Each lay commissioner initially elected from each district shall serve for a term of three years and until his successor is elected and qualifies. The lay commissioners are limited to three consecutive terms.
(C) The commission is empowered to investigate and hear those complaints against physicians (medical and osteopathic) filed with the board pursuant to Section 40-47-200. The hearing must be conducted in accordance with Act 176 of 1977 (Administrative Procedures Act) and with regulations promulgated by the board and must be before a panel composed of at least three commissioners designated by the board, and one of those three commissioners must be a lay member. The panel is empowered to hear the matters complained of and to make findings of fact and recommendations as to disposition of those matters to the board. The panel shall make a certified report of the proceedings before it, including its findings of fact, conclusions, and recommendations, which must be filed together with a transcript of the testimony taken and exhibits as may have been in evidence before it with the administrator of the board, and a copy of the report must be delivered to the office of general counsel and the licensee or his counsel."
Professions and occupations, members, immunity from liability
SECTION 12. Section 40-71-10 of the 1976 Code, as last amended by Act 296 of 2004, is further amended to read:
"Section 40-71-10. (A) 'Professional society' as used in this chapter includes legal, medical, osteopathic, optometric, chiropractic, psychological, dental, accounting, pharmaceutic, and engineering organizations having as members at least a majority of the eligible licentiates in the area served by the particular society and any foundations composed of members of these societies. It also includes the South Carolina Law Enforcement Accreditation Council.
(B) There is no monetary liability on the part of, and no cause of action for damages arising against, a member of an appointed committee which is formed to maintain professional standards of a state or local professional society as defined in this section or an appointed member of a committee of a medical staff of a licensed hospital, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital, or a committee appointed by the Department of Health and Environmental Control to review patient medical and health records in order to study the causes of death and disease for any act or proceeding undertaken or performed within the scope of the functions of the committee if the committee member acts without malice, has made a reasonable effort to obtain the facts relating to the matter under consideration, and acts in the belief that the action taken by him is warranted by the facts known to him.
(C) No person acting pursuant to subsection (B) shall be subject to any monetary liability or cause of action for damages for any action for restraint of trade, violation of the South Carolina Unfair Trade Practices Act, or other action predicated upon unfair or illegal competition unless such person acted with malice.
(D) The provisions of this section do not affect the official immunity of an officer or employee of a public corporation."
Professions and occupations, members, confidentiality of documents
SECTION 13. Chapter 71, Title 40 of the 1976 Code is amended by adding:
"Section 40-71-30. When a party asserts a claim of confidentiality over documents pursuant to Section 40-71-20 and the party seeking the documents objects, the documents must be filed under seal with the circuit court having jurisdiction over the pending action and are subject to judicial review by the circuit court judge. If the court determines that any of the documents are not subject to confidentiality pursuant to Section 40-71-20 and are otherwise discoverable, the court shall provide the documents to the requesting party. In the event the court finds that a party acted unreasonably in unsuccessfully asserting the claim of confidentiality, the court shall assess attorney's fees against that party for any fees incurred by the requesting party in obtaining the documents."
Department of Insurance, report to General Assembly
SECTION 14. The Department of Insurance shall review data reported on annual statements by liability insurers, including, but not limited to, paid claims, reserves, loss adjustment expenses, and such additional data as the department may require by promulgation of bulletin, to determine savings related to a decrease in litigation and claims paid pursuant to litigation after the effective date of this act. The department may require special reports from insurers to determine if savings are realized as a result of the provisions of this act. The department shall compile a report of savings realized and submit it for General Assembly review upon request. Costs or expenses associated with the compilation of this report of savings shall be paid by the insurers pursuant to the provisions of Chapter 13 of Title 38. The Department of Insurance shall review premium and losses by line of insurance to determine if appropriate adjustments have been made based upon the department estimates of savings realized pursuant to the provisions of this act.
Department of Insurance, South Carolina Medical Malpractice Joint Underwriting Association, Patients' Compensation Fund, report to General Assembly
SECTION 15. As a majority of the health care community is insured through the South Carolina Medical Malpractice Joint Underwriting Association and the Patients' Compensation Fund and as it is essential for the General Assembly to understand the effects of changes to tort laws, the South Carolina Department of Insurance is given authority to request data regarding changes in claims practices from the South Carolina Medical Malpractice Joint Underwriting Association and the Patients' Compensation Fund. Such data may include paid claims, paid loss adjustment expense, case reserves, bulk reserves, and claim counts by quarter for the previous five years. The department may make such a request of the South Carolina Medical Malpractice Joint Underwriting Association and the Patients' Compensation Fund and such information must be provided within thirty days.
The Department of Insurance shall report annually to the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the Governor as to whether this and other related enactments have resulted in reductions in premiums and as to any other trends of significance which might impact premium cost.
Civil procedure, civil liability
SECTION 16. Section 15-38-15 of the 1976 Code, as added by an act of 2005 bearing ratification no. 23, is amended to read:
"Section 15-38-15. (A)(1) In an action to recover damages resulting from personal injury, wrongful death, or damage to property or to recover damages for economic loss or for noneconomic loss such as mental distress, loss of enjoyment, pain, suffering, loss of reputation, or loss of companionship resulting from tortious conduct, if indivisible damages are determined to be proximately caused by more than one defendant, joint and several liability does not apply to any defendant whose conduct is determined to be less than fifty percent of the total fault for the indivisible damages as compared with the total of: (i) the fault of all the defendants; and (ii) the fault (comparative negligence), if any, of plaintiff. A defendant whose conduct is determined to be less than fifty percent of the total fault shall only be liable for that percentage of the indivisible damages determined by the jury or trier of fact.
(B) Apportionment of percentages of fault among defendants is to be determined as specified in subsection (C).
(C) The jury, or the court if there is no jury, shall:
(1) specify the amount of damages;
(2) determine the percentage of fault, if any, of plaintiff and the amount of recoverable damages under applicable rules concerning 'comparative negligence'; and
(3) upon a motion by at least one defendant, where there is a verdict under items (1) and (2) above for damages against two or more defendants for the same indivisible injury, death, or damage to property, specify in a separate verdict under the procedures described at subitem (b) below the percentage of liability that proximately caused the indivisible injury, death, damage to property, or economic loss from tortious conduct, as determined by item (1) above, that is attributable to each defendant whose actions are a proximate cause of the indivisible injury, death, or damage to property. In determining the percentage attributable to each defendant, any fault of the plaintiff, as determined by item (2) above, will be included so that the total of the percentages of fault attributed to the plaintiff and to the defendants must be one hundred percent. In calculating the percentage of fault attributable to each defendant, inclusion of any percentage of fault of the plaintiff (as determined in item (2) above) shall not reduce the amount of plaintiff's recoverable damages (as determined under item (2) above).
(a) For this purpose, the court may determine that two or more persons are to be treated as a single party. Such treatment must be used where two or more defendants acted in concert or where, by reason of agency, employment, or other legal relationship, a defendant is vicariously responsible for the conduct of another defendant.
(b) After the initial verdict awarding damages is entered and before the special verdict on percentages of liability is rendered, the parties shall be allowed oral argument, with the length of such argument subject to the discretion of the trial judge, on the determination of the percentage attributable to each defendant. However, no additional evidence shall be allowed.
(D) A defendant shall retain the right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged injury or damages and/or may be liable for any or all of the damages alleged by any other party.
(E) Notwithstanding the application of this section, setoff from any settlement received from any potential tortfeasor prior to the verdict shall be applied in proportion to each defendant's percentage of liability as determined pursuant to subsection (C).
(F) This section does not apply to a defendant whose conduct is determined to be wilful, wanton, reckless, grossly negligent, or intentional or conduct involving the use, sale, or possession of alcohol or the illegal or illicit use, sale, or possession of drugs."
Severability clause
SECTION 17. If any provision of Section 16 or its application to any person is held invalid, unenforceable, or unconstitutional, this validity, unenforceability, or unconstitutionality shall negate the other provisions or applications of Section 16, and to this end, the provisions of Section 16 are not severable.
Rights pursuant to the Tort Claims Act
SECTION 18. The provisions of this act do not affect any right, privilege, or provision of the South Carolina Tort Claims Act as contained in Chapter 78, Title 15 of the 1976 Code or the South Carolina Solicitation of Charitable Funds Act as contained in Chapter 56 of Title 33.
Savings clause
SECTION 19. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
Severability clause
SECTION 20. Except as provided by Section 17 if any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
Time effective
SECTION 21. (A) Section 16 takes effect July 1, 2005, and shall only apply to causes of action arising on or after that date except for causes of actions relating to construction torts which would take effect on July 1, 2005, and apply to improvements to real property that first obtain substantial completion on or after July 1, 2005. For purposes of this section, an improvement to real property obtains substantial completion when a municipality or county issues a certificate of occupancy in the case of new construction, or completes a final inspection in the case of improvements to existing improvements.
(B) Upon approval by the Governor, this act takes effect July 1, 2005, for causes of action arising after July 1, 2005, except that as of this act's effective date, the State Treasurer shall relinquish the management of funds in the Patients' Compensation Fund, created pursuant to Section 38-79-420, to the Board of Governors of the fund, and premiums paid on or after this act's effective date must be deposited with the Board of Governors of the fund. The fund must be fully transferred to the Board of Governors, and the State Treasurer may not hold any deposits of the fund as of ninety days after this act's effective date.
Ratified the 31st day of March, 2005.
Approved the 4th day of April, 2005.
This web page was last updated on Friday, December 4, 2009 at 3:26 P.M.