B. Actual Damages
Actual damages in South Carolina medical malpractice cases may arise under causes of action for negligence13 or contract.14 South Carolina does not recognize a cause of action for medical battery.15
1. Negligence
Nearly all medical malpractice actions will be based on negligence. South Carolina distinguishes professional negligence from ordinary negligence,16 usually requiring expert testimony to establish a professional standard of care and its breach in a medical malpractice case.17 As in an ordinary negligence action, the presence of a duty, proximate causation, and damages are the remaining elements to be proven in a medical malpractice action.18
In a negligence action for malpractice, an injured party can recover damages for past, present, and future harm legally caused by the breach of the duty of professional care.19 As in other personal injury actions, great latitude is allowed in the introduction of evidence to aid in determining the extent of the damages. The South Carolina Supreme Court has ruled that the "most probable" standard is not South Carolina's standard of admissibility of damages evidence.20 As a broad general rule, "any evidence which tends to establish the nature, character, and extent of injuries which are the natural and proximate consequences of [a] defendant's acts [is admissible] if otherwise competent."21 Future damages may not be determined by speculation or guess, but they need not be proven with mathematical certainty. The standard of proof is "reasonable certainty" that damages will occur.22
Consequently, a medical malpractice jury has been allowed to consider possibilities of future economic loss with only a "30 percent or less" likelihood.23
Medical malpractice cases can have awards for physical pain and suffering, mental anguish, physical disability, loss of enjoyment of life, impairment of ability to work, lost income, medical expenses, or any other damage or loss recognized in a personal injury action.24 In a wrongful death action arising from medical negligence, a patient's personal representative can recover for a family member's: "(1) pecuniary loss; (2) mental shock and suffering; (3) wounded feelings; (4) grief and sorrow; (5) loss of companionship; and (6) deprivation of the use and comfort of the intestate's society, including the loss of his experience, knowledge, and judgment in managing the affairs of himself and of his beneficiaries."25 A spouse has been allowed to pursue her loss of consortium action, even when her husband's medical malpractice action was barred by the statute of limitations.26
A person cannot recover damages, however, from a physician who failed to inform the parent of a potential birth defect. In Willis v. Wu,27 the Supreme Court rejected the wrongful life cause of action in which a child alleged he would not have been born, if his mother's physician had warned of the risk of bearing a child with congenital impairment. The court concluded that the damages in such a case would be too "imponderable," because ultimately the question would be "Is a severely impaired life so much worse than no life at all?"28
a. Damages Limitations Under the South Carolina Noneconomic Damage Awards Act of 2005
Medical malpractice actions arising after July 1, 2005, are subject to the South Carolina Noneconomic Damage Awards Act of 2005.29 In actions against private sector health care providers30 and health care institutions,31 each claimant's recovery for noneconomic damages is capped. The maximum amount to be recovered by each claimant for noneconomic damages depends on yearly changes in the Consumer Price Index and on the number of defendants. Noneconomic damages are defined as any "nonpecuniary damages," but specifically include pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, and fear of loss, illness, or injury.32
The provisions of the act "do not limit the amount of compensation for economic33damages suffered by each claimant in a medical malpractice claim."34 Moreover, the limitations for noneconomic damages do not apply if the jury or court determines that the defendant was grossly negligent, wilful, wanton, or reckless, and such conduct was the proximate cause of the claimant's noneconomic damages.35 They also will not apply "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."36
When the act was adopted, each claimant's maximum recovery of noneconomic damages from a single health care provider or a single health care institution was $350,000.37 The maximum aggregate recovery against multiple providers or institutions for noneconomic damages was $1,050,000 per claimant.38 Because of increases in the Consumer Price Index,39 the limit on recovery of noneconomic damages from a single health care provider or single health care institution increased in 2008 to $386,300 per claimant and the aggregate limit of $1,050,000 increased to $1,158,900 per claimant.40
Aggregate claims against multiple defendants are subject to statutory rules of joint liability.41 Under those rules, a court may determine that two or more persons are to be treated as a single party by reason of agency, employment, or other legal relationship giving rise to vicarious liability.42 If applied, a claimant will not be able to increase recovery of noneconomic damages by having both a physician and his practice as defendants in the lawsuit. Similarly, a claimant's noneconomic damages recovery would not increase by naming both a nurse and the hospital that employs her.
A claimant is any person who suffers personal injury.43 "Personal injury" means "bodily injur[y], mental distress or suffering, loss of wages, loss of services, loss of consortium, wrongful death, survival, and other noneconomic damages and actual economic damages."44
The following examples illustrate how damages may be calculated under the Noneconomic Damages Awards Act of 2005.
Example 1. A patient sues only her private doctor for medical malpractice. Her damages include $100,000 in lost wages, $25,000 in medical expenses, and pain and suffering. Using the 2008 limits on noneconomic damages, the patient's maximum recovery from the single doctor would be $511,300. The maximum recovery will be the same, even if she sues the doctor's practice, if the court treats the doctor and his practice as a single entity. If the patient's husband brings a claim for loss of consortium for noneconomic damages only, his recovery would be capped at $386,300.
Example 2. A patient sues her private doctor and a private sector hospital for negligence in both physician and nursing care. Her damages include $100,000 in lost wages, $25,000 in medical expenses, and pain and suffering. Using the 2008 limits on noneconomic damages, the patient's maximum recovery will be $897,600. If the patient's husband brings a claim for loss of consortium for noneconomic damages only, his recovery would be capped at $772,600.
Example 3. A personal representative brings a wrongful death claim and survival action on behalf of a husband and four children against four separate private physician practices who failed to timely diagnose an ailment that progressively worsened and caused the patient's death. The husband claims loss of financial support in the amount of $100,000. The survival action claim is for the wife's pain and suffering before death and medical expenses of $25,000. Burial expenses were $10,000. The husband and each child claim for noneconomic damages allowed by South Carolina's wrongful death act and the Noneconomic Damage Awards Act. Using the 2008 limits on noneconomic damages, the decedent's estate could have a maximum recovery of $1,193,900 for her medical expenses, burial expenses, and pain and suffering. The husband could have a maximum recovery of $1,258,900 for his economic and noneconomic losses as a wrongful death claimant. Together the...
