Medical Malpractice
Each lawyer at the top rated Joe Griffith Law Firm has a wealth
of experience in the legal fields of medical malpractice, personal
injury and wrongful deaths. Our lawyers are located in Charleston
and Mt. Pleasant, South Carolina, and devote 100% of their practices
to litigation. Serious and catastrophic medical malpractice,
personal injury and wrongful death litigation are a major focus of
our practice. Lead by former federal prosecutor Joseph P. Griffith,
Jr., the Joe Griffith Law Firm is designated as an AV rated firm by
the prestigious Martindale-Hubbell® attorney rating company,
signifying the highest possible ranking for legal ability and ethics
as judged by peers in the legal profession. Every attorney at our
firm is dedicated to providing outstanding legal service to each of
our clients and will fight to obtain all of the compensation due our
clients under the law. Client satisfaction is our number one goal.
Medical and health care providers – primarily hospitals,
surgeons, doctors, pharmacists, physicians, nurses and emergency medical technicians (“EMTs”) -- are expected to
offer us care and support during our most critical moments. The vast
majority of medical and health care providers do offer excellent
care that will help us to recover from a personal injury or medical
condition. However, some providers fail to meet the requisite
standard of care, and, under such circumstances, may be guilty of
medical malpractice.
Common Types of Medical Malpractice
Medical malpractice, commonly called “medmal” for short, generally
occurs when a negligent, careless or reckless act, mistake, error, or omission by a
doctor or other medical professional causes damage or harm to a
patient. It has been estimated that almost 98,000 people die in
hospitals in the United States each year, and that medication errors
injure approximately 1.3 million people per year. Medical
malpractice errors or negligence typically occur in the diagnosis or
treatment of a patient, and may include, but are not limited to:
- Failure to treat
- Wrong treatment
- Delay in diagnosis
- Failure to diagnose
- Failure to rule out causes or conditions
- Misdiagnosis
- Failure to test
- Failure to obtain informed consent
- Surgical injury
- Wrong prescription of drugs
- Patient abandonment
- Use of defective medical products
A patient’s right to recover compensation for medical malpractice
is generally governed by common law as well as statutes and regulations
which have been promulgated to protect patients who have been
subjected to medical malpractice or medical negligence. Medical
malpractice suits are usually complex, time-consuming, expensive to
litigate, dependent upon expert testimony, and vigorously defended
by health care providers and their insurers.
Elements of a Medical Malpractice or Medical Negligence Claim
The medical malpractice personal injury victim is commonly
referenced as a “plaintiff” and the person or entity that caused the
harm is commonly referenced as a “defendant.” The South Carolina
Supreme Court has set forth the elements of negligence with regard
to a medical malpractice personal injury claim that a plaintiff has
to prove as follows:
- A physician-patient relationship exists.
- 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.
- That the defendant departed from the recognized and
generally accepted standards.
- The defendant’s departure from such generally recognized
practices and procedures was the proximate cause of the
plaintiff’s alleged injuries and damages.
David v. McLeod Regional Medical Center , 367 S.C. 242, 626
S.E.2d 1 (2006).
“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.” Durham v. Vinson, 360 S.C. 639, 650-51, 602
S.E.2d 760, 766 (2004).
A plaintiff must proffer expert testimony to prove both the required
standard of care and the defendant’s failure to conform to that
standard, unless the subject matter lies within the ambit of common
knowledge so that no special learning is required to evaluate the
conduct of the defendants. Pederson v. Gould, 288 S.C. 141, 143, 341
S.E.2d 633, 634 (1986). For medical malpractice cases in South
Carolina arising on or after July 1, 2005, S.C. Code § 15‑36‑100(b)
provides that a plaintiff must 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. Under certain circumstances, the expert affidavit
may be filed after the complaint is filed. The medical malpractice
attorneys and lawyers at Joe Griffith Law Firm have years of
experience determining which expert is appropriate for a particular
medical malpractice case. Needless to say, having a suitable,
qualified medical expert is one of the most critical aspects of a
medical malpractice case.
Informed Consent Claim
A doctor or physician’s failure to obtain a patient’s “informed
consent” with regard to a procedure or treatment is a form of
medical malpractice or negligence. The term “informed consent” means
that a physician (or other medical provider) must tell a patient all
of the potential benefits, risks, and alternatives involved in any
surgical procedure, diagnostic procedure, medical procedure,
therapeutic procedure, or other course of treatment, and must obtain
the patient's written consent to proceed. “Under the doctrine of
informed consent, it is generally held that a physician who performs
a diagnostic, therapeutic, or surgical procedure has a duty to
disclose to a patient of sound mind, in the absence of an emergency
that warrants immediate medical treatment, (1) the diagnosis, (2)
the general nature of the contemplated procedure, (3) the material
risks involved in the procedure, (4) the probability of success
associated with the procedure, (5) the prognosis if the procedure is
not carried out, and (6) the existence of any alternatives to the
procedure.” Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct.
App. 1984), cert. denied, 283 S.C. 64, 320 S.E.2d 35 (1984).
“Whether the physician has acted unreasonably is often a question of
professional judgment. In determining whether and how much he [or
she] should disclose, the physician must consider the probable
impact of disclosure on the patient, taking into account his [or
her] peculiar knowledge of the patient's psychological, emotional
and physical condition, and must evaluate the magnitude of risk, the
frequency of its occurrence and the viability of alternative
therapeutic measures.” Id., 281 S.C. at 547, 316 S.E.2d at 695.
Breach of Contract or Warranty Claim
While most health care providers will not guarantee or warrant a
particular outcome, there are times when they do, and a failure to
successfully provide the outcome may give rise to a breach of
contract or breach of warranty claim. These type cases usually
involve plastic surgery wherein the patient is told that his or her
post-surgery physical appearance will be the same as demonstrated on
a computerized enhancement of the patient’s photograph.
Compensation for a Medical Malpractice Personal Injury
In a medical malpractice personal injury lawsuit, a victim seeks
compensation for the injury or injuries he or she has suffered.
Compensation can include past and future medical expenses,
disability or deformity, loss of income, emotional and mental
anguish, loss of a spouse ’ s comfort and society, past and future
pain and suffering, and an amount which would be necessary to make
the person whole as respects a permanent personal injury. McNeil v.
United States, 519 F.Supp. 283 (D.S.C. 1981). In cases where the
defendant acted recklessly, maliciously or willfully, punitive
damages may also be awarded. Punitive damages in medical malpractice
lawsuits are intended to punish the responsible party and deter
others from committing the same acts. Gamble v. Stevenson, 305 S.C.
104, 406 S.E.2d 350 (1991). If a wrongful death results from the
medical malpractice, the decedent’s beneficiaries are entitled to
compensation. See our Wrongful Death Overview.
Caps or Limitations on Recovery
The South Carolina state legislature seriously eroded the rights of
patients when it passed legislation, effective for medical
malpractice cases arising on or after July 1, 2005, which placed
caps on non-economic damages a patient could recover from a liable
defendant health care provider. S.C. Code § 15‑32‑220(a) limits the
civil liability for non‑economic damages of the health care provider
to an amount not to exceed $350,000 for each claimant regardless of
the number of separate causes of action on which the claim is based.
S.C. Code § 15‑32‑220(a) provides an exception to the foregoing cap
where the health care provider is proven to be grossly negligent,
willful, wanton or reckless and that conduct was the proximate cause
of the claimant’s non‑economic damages. S.C. Code § 15‑32‑220(b)
provides that the $350,000 cap is limited to each claimant. S.C.
Code § 15‑32‑220(c) allows a claimant to stack his claim, and
provides that up to three health care providers may be subject to
the $350,000 cap per claimant, for a total of $1,050,000 per
claimant. The non‑economic damage cap of $350,000 per medical entity
or practice or person does not apply to economic damages and does
not apply to punitive damages.
Effective for medical malpractice cases arising on or after July 1,
2005, S.C. Code § 15‑32‑230 further limits liability with regard to
emergency obstetrical or emergency department situations. This
section eliminates liability on behalf of any person providing
emergency care or emergency obstetrical care to a person in
immediate threat of death or an immediate threat of serious bodily
injury while in an emergency room, obstetrical or surgical suite,
unless the health care provider is proven to be grossly negligent.
Other caps or limitations may be applicable to a medical malpractice
case as well.
Causes of Medical
Malpractice
Time Limitations for Filing Suit
There are time limits on bringing a personal injury lawsuit in the
state of South Carolina known as statutes of limitations. See S.C.
Code §§ 15-3-530(5); 15-3-535. While a medical malpractice personal
injury suit is generally subject to a three year statute of
limitations, there may be exceptions depending on the circumstances,
such as a medical malpractice case where the negligent conduct may
be covered by a concept known as the “discovery rule.” See S.C. Code
§ 15-3-545; Wilson v. Shannon, 299 S.C. 512, 386 S.E.2d 257 (Ct.
App. 1989). The statutes of limitations are different for negligence
suits against a South Carolina state government agency pursuant to
the South Carolina Tort Claims Act (“TCA”) and the federal
government pursuant to the Federal Tort Claims Act (“FTCA”). Under
the TCA, a suit must generally be filed within two years, unless a
verified claim is filed within a year of the injury, then the
statute of limitations is three years. S.C. Code § 15-78-110. Under
the FTCA, an administrative tort claim must generally be presented
to the subject federal agency within two years. Once a timely
administrative tort claim has been filed, there is no statute of
limitations on bringing a suit unless the federal agency denies the
claim, in which case a suit must be brought in federal court within
six months after the denial. 28 U.S.C. §§ 1346(b), 1402, 2401, 2675.
S.C. Code § 15‑79‑125 requires, on medical malpractice cases arising
on or after July 1, 2005, that before a medical malpractice suit can
be filed, a plaintiff has to simultaneously file both a notice of
intent to file suit and an affidavit of an expert witness subject to
the affidavit requirements established in § 15‑36‑100 in a county in
which venue would be proper for filing or initiating the action.
Statutory mediation of any such medical malpractice case is required
as well, and, there are time limits for filing suit should the
attempted mediation fail.
It is important to consult with a medical malpractice attorney or
medical malpractice lawyer at Joe Griffith Law Firm at your earliest
convenience in order to determine the viability of your potential
medical malpractice claim.
The Joe Griffith Law Firm is a Charleston, South Carolina (“SC”) law
firm that focuses on medical malpractice, personal injury and
wrongful death litigation. Each of our lawyers has years of
experience handling these types of cases. Our attorneys will
investigate the facts, assess your claim, determine which parties
and insurance companies are to be held responsible, organize all of
the details of your case and pursue it vigorously in settlement
negotiations or at trial. If you believe that you or a loved one may
have a medical malpractice, personal injury or wrongful death case,
please contact the Joe Griffith Law Firm.
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