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Home / Courts / Tort/Negligence – Medical Malpractice – Civil Practice – Pre-Filing Affidavit – Breach – Proximate Cause

Tort/Negligence – Medical Malpractice – Civil Practice – Pre-Filing Affidavit – Breach – Proximate Cause

Grier v. AMISUB of South Carolina, Inc. (Lawyers Weekly No. 010-039-12, 6 pp.) (Kaye G. Hearn, J.) Appealed from York County Circuit Court (S. Jackson Kimball III, Special Judge) S.C. S. Ct. Click here for the full-text opinion.

Holding: Read together, S.C. Code Ann. §§ 15-79-125(A) and 15-36-100 require a medical malpractice plaintiff to file a notice of her intent to file suit, including an affidavit of an expert witness as to the defendant’s breach of the standard of care. The expert’s affidavit need not address proximate cause at the pre-filing stage.

We reverse the circuit court’s dismissal of plaintiff’s medical malpractice claim.

Section 15-79-125(A) provides, “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.”

Section 15-36-100 says the plaintiff has to submit “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 term “negligent act or omission” consistently has been used to refer only to breach and never to causation.

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. Accordingly, the plain and unambiguous language of the statute forecloses any argument that the affidavit must contain a proximate cause opinion.

Moreover, § 15-36-100 restricts a plaintiff’s common law right to bring a malpractice claim by imposing this requirement. Consequently, the statute is to be strictly construed.

The defendant-hospital focuses upon § 15-79-125(A), which requires a plaintiff alleging medical malpractice show a claim upon which a plaintiff is entitled to relief.” Under this guise, the hospital advances two arguments regarding this statute: (1) the plain language of § 15-79-125(A) requires that the affidavit contain an opinion as to proximate cause because it requires that a plaintiff show he is entitled to relief and, in the alternative, (2) § 15-79-125(A) implicitly imposes this requirement. We disagree with both.

Like § 15-36-100(B), § 15-79-125(A) is unambiguous and in derogation of the common law. Read plainly and strictly, § 15-79-125(A) simply requires the contemporaneous filing of both the notice and the affidavit. While this statute supplies several requirements for the notice, it does not speak at all to what is required for the affidavit beyond stating that it is “subject to the affidavit requirements established in Section 15-36-100.”

We also reject the hospital’s “implicit legislative intent” argument. We are confined to what the statute says, not what it ought to say. We therefore are in no position to look beyond the plain language of the statute and read into it a requirement that the expert also opine as to causation at this stage in the proceedings.

Accordingly, we hold nothing in § 15-79-125(A) requires that an expert affidavit in a medical malpractice action submitted pursuant to § 15-36-100(B) contain an opinion regarding causation.

Reversed and remanded.

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