Statistics reveal that every year, medical mistakes kill or injure nearly 100,000 people. In South Carolina, a physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances. A plaintiff alleging medical malpractice must provide evidence showing (1) the generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants' field of medicine under the same or similar circumstances, and (2) that the defendants departed from the recognized and generally accepted standards.
It is important to note that South Carolina has passed its "tort reform" legislation, which included new procedures on Medical Malpractice Claims. Some important elements relating to medical malpractice include the following:
Notice. The new law requires that, prior to litigation, a Plaintiff must file a "Notice of Intent to File a Lawsuit". Together with the Notice, the Plaintiff must also file an affidavit from an expert witness identifying the specific acts of negligence.
Mediation. After the Notice is filed, the Clerk of Court will assign the case a mediator to facilitate settlement discussions. Mediation/Settlement conferences must take place soon thereafter.
Tolling. Filing the Notice tolls the applicable statute of limitations. Depending on the type of medical provider, the statute of limitations is either 2 years or 3 years.
Lawsuit. If the case is not settled, then the Plaintiff must file the lawsuit on the later of either (1) 60 days from the date the mediation is unsuccessful, or (2) the expiration of the statute of limitations.
Damages. The new law also caps damages for non-economic claims (pain and suffering, scarring, permanent disability, etc). This does not cap out-of-pocket or other economic damages (medical bills, lost wages, etc). Also, it does not cap an award of punitive damages for gross or willful misconduct. Keep in mind that the Tort Claims Act limits damages even more on claims against state entities, such as a public hospital or medical facility.
Effect. The new law is intended to weed-out claims that can't be verified by an expert. It is also intended to facilitate settlement before litigation. On the other hand, we have seen that some insurance companies may require an expert's affidavit before entertaining settlement, and an observation among some Plaintiffs' attorneys is that the insurance companies rarely offer much money at the pre-suit mediation, instead opting to defend the case through litigation.
Call Palmetto Injury Lawyers for free advice about your South Carolina medical malpractice injury claim at Toll Free (888) 848-8847 or fill out our contact form for more information.