The South Carolina Supreme Court issued a ruling affecting South Carolina malpractice lawyers such as Nathan Hughey and Hughey Law Firm on July 8, 2013 in the case of Ross v. Waccamaw. In that case, the Supreme Court addressed “the question of whether the failure to complete the mediation conference in a timely manner divests the trial court of subject matter jurisdiction and requires dismissal.” The Court concluded “that the failure to complete the mediation conference in a timely manner does not divest the trial court of subject matter jurisdiction and dismissal is not mandated.” I have previously written on South Carolina’s tort reform laws in this blog, and taught on the same. In Ross v. Waccamaw, the Court reversed the trial court’s dismissal of a case for not completing mediation in the specified timeframe. This decision makes the most sense. It is impossible for Plaintiff’s attorneys to get defense lawyers to schedule a mediation within a specified timeframe if they do not want to do so, since defense lawyers have zero motivation to settle a case as soon as they come in the door. This opinion will alleviate the necessity of scheduling mediations without any participation by the defendant simply to get a date scheduled. For nursing home abuse attorneys at Hughey Law Firm and South Carolina malpractice attorney Nathan Hughey, this is am important ruling. As the Supreme Court noted: To accept the view advanced by Respondents would lead to an absurd statutory construction. Specifically, Respondents would have this Court construe section 15-79-125 as a trap for plaintiffs with potentially meritorious claims. Given the pressures of practicing law for even the moderately busy practitioner, completion of the mediation conference in a timely manner will not always be achievable. Respondents’ interpretation is ripe for mischief, as defendants could easily thwart timely completion of the mediation conference, and then seek dismissal of the Notice of Intent and reinstatement of the statute of limitations. A mandated penalty of dismissal, as urged by Respondents, for lack of subject matter jurisdiction is fundamentally at odds with the language and purpose of section 15- 79-125. The Supreme Court’s opinion is as follows:
THE STATE OF SOUTH CAROLINA
In The Supreme Court
John Thomas Ross, Appellant, v. Waccamaw Community Hospital, Dr. Webster N. Jones, III, and Dr. David R. Anderson, Defendants, Of whom, Dr. Webster N. Jones, III, and Dr. David R. Anderson are, Respondents. Appellate Case No. 2010-155046 Appeal from Georgetown County Benjamin H. Culbertson, Circuit Court Judge
Opinion No. 27276
Heard February 21, 2013 – Filed June 26, 2013
REVERSED AND REMANDED
Karl S. Brehmer and L. Darby Plexico, III, both of Brown & Brehmer, of Columbia, for Appellant. John B. McCutcheon, Jr., and Lisa A. Thomas, both of Thompson & Henry, PA, of Conway, and Andrew F. Lindemann, of Davidson & Lindemann, PA, of Columbia, and Darren K. Sanders, of Buyck and Sanders Law Firm, LLC, of Mount Pleasant, for Respondents.
Section 15-79-125 and the pre-suit mediation conference
As part of the Tort Reform Act of 2005 Relating to Medical Malpractice,1 the Legislature enacted section 15-79-125 of the South Carolina Code, which requires a medical malpractice plaintiff to file and serve a Notice of Intent to File Suit (Notice of Intent) before the plaintiff may initiate a civil action. S.C. Code Ann. § 15-79-125(A) (Supp. 2012). The Notice of Intent must contain a statement of the facts upon which the plaintiff’s claim is based, be accompanied by an affidavit of an expert witness identifying at least one negligent act or omission claimed to exist, and include the standard interrogatories required by the South Carolina Rules of Civil Procedure (SCRCP). Id. Filing the Notice of Intent tolls the statute of limitations. Id. at § 15-79-125(C). Following service of the Notice of Intent, the parties are required to participate in a mediation conference. Specifically, subsection (C) provides: Within ninety days and no later than one hundred twenty days from the service of the Notice of Intent to File Suit, the parties shall participate in a mediation conference unless an extension for no more than sixty days is granted by the court based upon a finding of good cause. Subsection (C) is silent as to the consequences of failing to timely comply with the mediation conference. Subsection (C) does, however, provide that the South Carolina Alternative Dispute Resolution Rules (SCADRR or alternative dispute resolution rules) govern the mediation process, unless the alternative dispute resolution rules are inconsistent with the statute. Id. § 15-79-125(C). Regarding enforcement, subsection (D) explicitly recognizes the circuit court’s authority to ensure parties comply with the statutory pre-suit mediation requirements. Id. §15- 79-125(D). Only if the matter cannot be resolved through mediation may a plaintiff thereafter initiate a civil action by filing a summons and complaint. Id.
Appellant’s allegations of medical malpractice and section 15-79-125
On two separate occasions Appellant John Thomas Ross reported to Waccamaw Community Hospital2 with severe abdominal pain and was seen by Respondents, Dr. Webster N. Jones and Dr. David R. Anderson. It is alleged that Appellant had a bowel obstruction. Although a CT scan was performed each visit, neither Dr. Jones nor Dr. Anderson recommended that Appellant undergo a follow-up colonoscopy, and each time Appellant’s colon condition was allegedly misdiagnosed. Appellant believed Respondents’ failure to recommend a colonoscopy and properly diagnose his bowel obstruction amounted to professional negligence. Appellant served a Notice of Intent upon Respondents on November 25, 2008. Therefore, the section 15-79-125 mediation time period of 120 days expired on March 25, 2009. The parties initially scheduled mediation for March 12, 2009. Due to a subsequent scheduling conflict, however, Appellant’s counsel requested that mediation be postponed one week until March 18, 2009—which was within the 120-day period. However, Appellant’s counsel was thereafter required to appear for trial of another case on March 18, 2009, and the mediation conference was rescheduled once again, this time for May 20, 2009—outside the 120-day time period. The mediation conference was rescheduled for May 20 with the consent of all involved. None of the parties sought an extension from the circuit court to enlarge the statutory time period, and all parties proceeded as though the mediation would occur, even after the 120-day deadline lapsed. Nevertheless, six days before mediation was scheduled to take place, Respondents refused to participate, claiming the mediation conference was untimely under section 15-79-125(C) because Appellant failed to seek a sixty-day extension from the circuit court. Specifically, Respondents contended section 15-79-125 is a jurisdictional statute and that, absent a sixty-day extension granted for good cause, a Notice of Intent automatically expires if mediation is not conducted within 120 days of its filing, and the circuit court no longer has jurisdiction to entertain the matter.
Appellant argues the circuit court erred by granting Respondents’ motions to dismiss. We agree and hold that the circuit court retained jurisdiction after the expiration of the 120-day mediation period. We further hold that under the facts presented and the motions before the circuit court, the court should have granted Appellant’s motion to compel mediation. “‘Questions of statutory interpretation are questions of law, which we are free to decide without any deference to the court below.'” Grier v. AMISUB of S.C., Inc., 397 S.C. 532, 535, 725 S.E.2d 693, 695 (2012) (quoting CFRE, LLC v. Greenville Cnty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011)). “It is well-established that ‘the cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature.'” Id. (quoting Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000)). “Therefore, the courts are bound to give effect to the expressed intent of the legislature.” Id. “It is only when applying the words literally leads to a result so patently absurd that the General Assembly could not have intended it that we look beyond the statute’s plain language.” Id. at 536, 725 S.E.2d at 695-96 (citing Cabiness v. Town of James Island, 393 S.C. 176, 192, 712 S.E.2d 416, 425 (2011)). Further, “statutes in derogation of the common law are to be strictly construed.” Id. at 536, 725 S.E.2d at 696 (citing Epstein v. Coastal Timber Co., 393 S.C. 276, 285, 711 S.E.2d 912, 917 (2011)). “Under this rule, a statute restricting the common law will ‘not be extended beyond the clear intent of the legislature.'” Id. (quoting Crosby v. Glasscock Trucking Co., 340 S.C. 626, 628, 532 S.E.2d 856, 857 (2000)). “Statutes subject to this rule include those which ‘limit a claimant’s right to bring suit.'” Id. (quoting 82 C.J.S. Statutes § 535). Although section 15-79-125(C) provides that the mediation conference should occur within 120 days, the statute is silent as to the consequences of the parties’ failure to do so within the prescribed timeframe. Significantly, the General Assembly expressly identified the SCADRR as the governing procedural rules, which favor pretrial dispute resolution in lieu of litigation. See, e.g., Rule 1, SCADRR (“These rules shall be construed to secure the just, speedy, inexpensive and collaborative resolution in every action to which they apply.”). It is clear that the Legislature enacted section 15-79-125 to provide an informal and expedient method of culling prospective medical malpractice cases by fostering the settlement of potentially meritorious claims and discouraging the filing of frivolous claims.
In sum, the decision of the trial court was controlled by an error of law, for nothing in section 15-79-125 deprives the circuit court of jurisdiction or mandates dismissal if the parties fail to mediate within the 120-day time period. Rather, the trial court retains jurisdiction to permit the mediation process to continue beyond the 120-day time period, and situations of noncompliance are to be resolved through application of the relevant provisions of the SCADRR. In this case, there is no basis justifying dismissal. Therefore, the circuit court erred in granting Respondents’ motions to dismiss and in failing to compel mediation. We reverse and remand the matter to the circuit court for the pre-suit mediation process to be completed.
REVERSED AND REMANDED. TOAL, C.J., PLEICONES, BEATTY and HEARN, JJ., concur.