Tort/Negligence – Medical Malpractice – Qualification for Expert Opinion

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Although High, a practicing emergency nurse, is not a nurse practitioner, nor is he educated as one, this is not dispositive as to whether High is qualified to render an opinion addressing any of the breaches alleged as to the care nurse practitioner Morton provided (or failed to provide) to the decedent.

We reversed and remanded.

Travis Walker, individually and as personal representative of the Estate of Douglas Williford, and Lolita Moore (Appellants) appealed the circuit court’s dismissal of their medical malpractice action. Appellants argued the circuit court erred in (1) finding the affidavit filed with their notice of intent to file suit (NOI) was insufficient to satisfy the statutory prerequisite for their malpractice claims against certain medical providers, (2) finding a physician’s supplemental affidavit did not cure the purported defects in their initial expert’s affidavit, and (3) dismissing their malpractice action with prejudice.

Appellants contended the affidavit of Richard Kevin High, a practicing emergency nurse, was sufficient for purposes of section 15-36-100 of the South Carolina Code (Supp. 2024) because High has the education, training, and experience required to offer an opinion addressing the breaches of the standard of care referenced in his affidavit. Appellants asserted the circuit court should have evaluated whether High was qualified to opine as to nurse practitioner (NP) Kevin Morton’s errors in performing the functions of basic emergency care because the acts addressed in their complaint fall within the realm of emergency nursing care— regardless of the nurse practitioner’s ability to perform other physician-level medical acts. Appellants asserted that High’s extensive education, training, and experience—including his decades spent teaching nurses, prehospital personnel, medical students, medical residents, and faculty—qualified him for purposes of section 15-36-100(A)(3) to render an opinion as to Morton’s emergency room “workup” errors. We agreed. The circuit court erred in finding High’s affidavit failed to satisfy the requirements of sections 15-79-125 and 15-36-100 on topics within the realm of emergency nursing and emergency room “workup” care. High is board certified in emergency nursing, has practiced emergency nursing for over 30 years, and has taught medical personnel—including medical students, residents, and faculty —” the proper work up for emergency medicine patients” for over 15 years. Based on this experience, education, and training, High is qualified to render an expert opinion regarding the basic care and workup Williford should have received upon his presentation to the emergency room.

And, while we agreed with the circuit court that High might not be qualified to render an expert opinion as to all of the breaches Appellants alleged because High is not licensed, board certified, or specifically educated as a nurse practitioner, we found High is qualified to render an opinion as to one or more of the breaches alleged in his affidavit based on his “scientific, technical, or other specialized knowledge” in the emergency medicine context. High’s expertise is specifically contemplated by section 15-36-100(A)(3), one or more of the listed actions (and the failure to take them) fall within the purview of emergency nursing care, and High is extensively qualified in emergency nursing. Because High is qualified to render an opinion—at the very least—as to Morton’s failure to recheck Williford’s blood pressure and pain levels, his affidavit sufficiently alleged “at least one negligent act or omission claimed to exist” as required by the statute. See § 15-36-100(B) (requiring a plaintiff to 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”). We agreed with the circuit court that High is not a nurse practitioner, nor is he educated as one. But this is not dispositive as to whether High is qualified to render an opinion addressing any of the breaches alleged as to the care Morton provided (or failed to provide) to Williford.

We also agreed that High did not specifically allege Morton committed the negligent acts or omissions at issue; however, he stated “within a reasonable degree of medical certainty, that agents, and/or employees of AnMed Health and/or private practices staffing the . . . [ER] committed negligent acts or omissions in their care and treatment of” Williford. Morton falls within this group. High opined the medical providers who treated Williford committed one or more negligent acts or omissions in breaching the standard of care. This is precisely what section 15-36-100(B) requires. For these reasons, the circuit court erred in finding High’s affidavit insufficient to satisfy the pre-filing requirements of sections 15-79-125 and 15-36-100, in labeling High’s affidavit “unqualified and unlawful,” and in dismissing this matter.

Reversed and remanded.

Walker v. AnMed Health (Lawyers’ Weekly No. 011-026-25, 13 pp.) (Stephanie P. McDonald, J.) Appealed from Anderson County Circuit Court (R. Lawton McIntosh, J.) Jordan Christopher Calloway, of McGowan Hood Felder & Phillips, of Rock Hill, Jay Franklin Wright, of McGowan Hood Felder & Phillips, of Greenville, and Whitney Boykin Harrison, of McGowan Hood Felder & Phillips, of Columbia, all for Appellants. Andrew F. Lindemann, of Lindemann Law Firm, P.A., of Columbia, and Howard W. Paschal, Jr., of Greenville, both for Respondents. South Carolina Court of Appeals