Tort/Negligence — Medical Malpractice – Civil Practice – NOI – Mediation Requirement – Dismissal

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Rickerson v. Karl (Lawyers Weekly No. 011-037-15, 9 pp.) (John Geathers, J.) Appealed from Horry County Circuit Court (Benjamin Culbertson, J.) S.C. App.

Holding: Even though plaintiff’s notice of intent to file suit did not say that the case was subject to mandatory mediation and did not include a line for the clerk of court to write in the name of a mediator, and even though plaintiff did not timely schedule mandatory mediation, since he proceeded in good faith, responding to defendants’ discovery requests and attempting to schedule mediation when notified by the clerk of court, dismissal with prejudice is too harsh a sanction.

We reverse the trial court’s dismissal and remand this case.

S.C. Code Ann. § 15-79-125(C) does not list any consequences for failing to timely comply with its mediation conference requirement. However, it says that the mediation process is governed by the alternative dispute resolution rules. Under Rule 10(b), SCADRR, if a party fails to comply with the ADR rules, sanctions may be imposed, up to and including dismissal of the action.

A sanction that results in a dismissal is a severe punishment that should be imposed only if there is some showing of bad faith, willful disobedience, or gross indifference to the rights of the adverse party. In several recent decisions, our Supreme Court has chosen to reverse dismissals based on a technical application of the requirements of § 15-79-125 in favor of allowing cases to proceed on the merits.

The purpose of the mandatory mediation requirement of § 15-79-125 is to foster the settlement of potentially meritorious claims and to discourage the filing of frivolous claims; therefore, a technical noncompliance with this statute, without bad faith, should not result in the dismissal of the case.

Reversed and remanded.