Cause of negligence not necessary for liability suit to proceed

A ruling by the South Carolina Supreme Court about the scope of expert witness affidavits could expose doctors to more frivolous lawsuits, legal and medical experts say.

Since 2005, medical liability plaintiffs have been required to file a report by an expert that attests to their claims before a suit can be filed. But the state high court said May 2 that the expert opinion need not address how the alleged negligence caused injury. The report must assert only that the standard of care was breached, the court said.

“We were a bit perplexed with the ruling,” said Mark S. Barrow, a South Carolina-based medical liability defense attorney who was not involved in the case. “If you have an error but that error does not lead to a damage or does not contribute to an event, then you don’t have” a lawsuit.

The opinion stems from the death of Willie Fee, who died while under the care of Rock Hill, S.C.-based Piedmont Medical Center. Court documents do not indicate how Fee died.

Evelyn Grier, a representative for Fee’s estate, claimed that negligence by the medical center led to Fee’s death. In her expert witness affidavit, Grier included a nurse’s opinion that said Piedmont breached the standard of care in treating Fee. The nurse said the hospital failed to treat Fee properly for bedsores, among other things, according to court documents.

Piedmont argued that the expert report was insufficient because it did not include how the alleged negligence caused Fee’s death. A nurse was not qualified to render an opinion on a cause of death, the medical center said. Piedmont’s attorney declined to comment for this article.

A trial court agreed with the hospital, saying an expert opinion must link how the alleged negligence caused the patient harm. The court dismissed the case.

The South Carolina Supreme Court reversed, allowing the case to move forward. The lower court misinterpreted the state’s statute on pre-litigation expert witness reports, the court said.

“The General Assembly used a term of art which has a well-defined common law meaning as just ‘breach,’ and we can find nothing indicating the General Assembly intended to vary from it,” the court said. “Accordingly, the plain and unambiguous language of the statute forecloses any argument that the affidavit contain a proximate cause opinion.”

Other rulings on expert testimony

In recent years, courts have issued mixed rulings in legal challenges of similar tort reform provisions:

• In 2011, a Texas appeals court ruled constitutional the state’s certificate-of-merit rule for plaintiffs filing medical liability lawsuits.
• A 2010 decision by the Supreme Court of New Jersey provided more leeway for plaintiffs filing such expert witness reports. The court said plaintiffs who cannot find a doctor in the same speciality as the defendant physician are allowed to use other specialists.
• In 2009, the Washington Supreme Court struck down a state law requiring patients to submit certificates of merit before suing. The court said the provision encroached on the court’s ability to set its own procedural rules, violating the separation of powers between the Legislature and the judiciary.

The South Carolina ruling will allow lawsuits to move more quickly within the court system, said William McKinnon, Grier’s attorney.

“It discourages defendants from fighting over procedural matters so [they] can move to the litigation and fight the real lawsuit,” he said.

The ruling is a disappointment to doctors, because it changes the intent of the Legislature, said attorney Todd Atwater, CEO for the South Carolina Medical Assn. More plaintiffs now can file weak lawsuits without adequate reviews, he said.

“It undermines the preliminary [lawsuit] process and the expert witness role in establishing whether the case is legitimate,” he said. “The process was set up to avoid clogging up the courts and to weed out frivolous cases.”

The expert witness affidavit requirement was approved as part of a package of 2005 tort reforms in South Carolina. The Piedmont ruling means it’s time to revisit the legislation and clarify the law, Atwater said.

“We’re going to have to go back and fix it,” he said. “We plan to go back to the General Assembly next year and file a bill to clarify that an expert witness is there to help identify causation.”