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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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