I, Nathan Hughey, have had the opportunity to teach “tort reform” to other lawyers and professionals within the State of South Carolina since “tort reform” was enacted in this state in 2005. From the beginning, I researched his area of the law and have not only taught continuing legal education on this subject, but I have practiced law dealing with the impact of “tort reform” on my cases essentially each and every day since it was implemented. This is intended as a brief overview of tort reform in South Carolina.
This is Part 1: The Damages Caps Associated with Tort Reform in South Carolina.
The South Carolina Non-economic Damage Awards Act of 2005 is “tort reform” in South Carolina. Tort reform changed the way many types of cases are litigated, but it is especially applicable to medical malpractice actions, including cases against doctors, nursing homes, hospitals, and other similar providers. Tort reform, in the context of these cases, changed procedural rules my making the cases take longer to prosecute, implemented caps or limitations on recovery, and further diminished a Plaintiff’s ability to recover as easily as before tort reform was implemented. Tort reform in South Carolina limits recovery as follows: “In an action on a medical malpractice claim when final judgment is rendered against a single health care institution, the limit of civil liability for non-economic damages is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant.” This figure is adjusted for inflation. There is an argument that a Plaintiff can sue up to three different health care providers, combining so that “the limit of civil liability for non-economic damages for all health care institutions and health care providers is limited to an amount not to exceed one million fifty thousand dollars.” This is also adjusted for inflation.
Economic damages are not affected. Tort reform defines economic damages as pecuniary damages arising from medical expenses and medical care, rehabilitation services, costs associated with education, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, a claim for loss of spousal services, loss of employment, loss of business or employment opportunities, loss of retirement income, and other monetary losses. On the other hand, ‘Non-economic damages’ means non-pecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other non-pecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury.
Tort reform does not in and of itself limit the compensation for punitive damages, but there are various cases which limit punitive damages to a reasonable figure compared to actual damages. The limitations “do not apply if the jury or court determines that the defendant was grossly negligent, willful, wanton, or reckless, and such conduct was the proximate cause of the claimant’s non-economic damages, or if the defendant has engaged in fraud or misrepresentation related to the claim, or if the defendant altered or destroyed medical records with the purpose of avoiding a claim or liability to the claimant.”
I will continue with Part 2: The Procedural Hurdles Associated with Tort Reform in South Carolina, in my next post.