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Tort Reform in South Carolina Part 2: The Procedural Hurdles Associated with Tort Reform in South Carolina. Categories
Tort Reform in South Carolina Part 2: The Procedural Hurdles Associated with Tort Reform in South Carolina. `

I previously wrote about the damages caps related to Tort Reform in South Carolina.  Now I address the procedural hurdles that Tort Reform in South Carolina applies to your case.  I, Nathan Hughey, have taught and practiced in the area of Tort Reform in South Carolina and the Non-Economic Damages Act of South Carolina extensively since its introduction in 2005.  At Hughey Law Firm, we routinely handle cases dealing with these complex matters.

Prior to filing or initiating a civil action alleging injury or death a result of medical malpractice, the plaintiff now must contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness. The notice must name all adverse parties as defendants, must contain a short and plain statement of the facts showing that the party filing the notice is entitled to relief, must be signed by the plaintiff or by his attorney, and must include any standard interrogatories or similar disclosures required by the South Carolina Rules of Civil Procedure. Filing the Notice of Intent to File Suit tolls all applicable statutes of limitations. The Notice of Intent to File Suit must be served upon all named defendants in accordance with the service rules for a summons and complaint outlined in the South Carolina Rules of Civil Procedure.

The affidavit “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.”  Expert witnesses are required to meet certain standards to testify.  Under tort reform, an ‘expert witness’ means an expert who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who:

(1)    is licensed by an appropriate regulatory agency to practice his or her profession in the location in which the expert practices or teaches; and  (2) (a) is board certified by a national or international association or academy which administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or (b)  has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in: ( i)    the active practice of the area of specialty of his or her profession for at least three of the last five years immediately preceding the opinion; ( ii)    the teaching of the area of practice or specialty of his or her profession for at least half of his or her professional time as an employed member of the faculty of an educational institution which is accredited in the teaching of his or her profession for at least three of the last five years immediately preceding the opinion; or (iii)    any combination of the active practice or the teaching of his or her profession in a manner which meets the requirements of sub-items (i) and (ii) for at least three of the last five years immediately preceding the opinion; (3)    is an individual not covered by subsections (A)(1) or (2), that has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual’s study, experience, or both. However, an affidavit filed pursuant to subsection (B) by an expert qualified under this subsection must contain an explanation of the expert’s credentials and why the expert is qualified to conduct the review required by subsection (B). The defendant is entitled to challenge the sufficiency of the expert’s credentials pursuant to subsection (E).

Under tort reform, “before a medical malpractice action is brought to trial, the parties shall participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules in effect at the time for the State or any portion of the State. From a practical standpoint, the “pre suit” mediation is usually simply a telephone formality.  This means that the case is delayed by (1) the time it takes to pay an expert to review the file and obtain an affidavit, (2) the time it takes to file and serve the notice of intent, and (3) the time up until the pre-suit mediation.  This means, from a practical perspective, a typical medical malpractice case is procedurally going to take at least 8-10 months longer than a wreck case, or premises liability / slip and fall, or similar case, in order to even get it moving.

There are numerous other provisions of tort reform in South Carolina, which affect cases substantively and procedurally, and the attorneys at Hughey Law Firm can discuss those with you if you desire.  If you have a professional negligence claim, such as a medical malpractice, construction, nursing home, or similar case, Nathan Hughey (me) or anyone at Hughey Law Firm will be happy to discuss it with you.

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