Bennett v. Lexington County Health Services District, Inc.

Tanya Bennett, as next friend of Mykelvion T., a minor, Appellant, v. Lexington County Health Services District, Inc. d/b/a Lexington Medical Center, Respondent.

Appellate Case No. 2013-001410

No. 2015-UP-305

Court of Appeals of South Carolina

June 24, 2015

UNPUBLISHED OPINION

Heard May 13, 2015.

Appeal From Lexington County Alison Renee Lee, Circuit Court Judge

Edward L. Graham and John Layton Ruffin, both of Graham Law Firm P.A., of Florence, for Appellant.

Weldon R. Johnson, Matthew Gregory Gerrald, and Emily Collins Brown all of Barnes, Alford, Stork & Johnson, LLP, of Columbia for Respondent.

PER CURIAM:

In this medical malpractice action, Appellant Tanya Bennett (Mother) challenges the circuit court's order granting summary judgment to Respondent Lexington County Health Services District, Inc., d/b/a Lexington Medical Center, on the ground that the action was barred by the statute of limitations. We affirm.

Mother's first assignment of error is the circuit court's conclusion that a minor's claim under the South Carolina Tort Claims Act (the Act)^[1] is not subject to "the discovery rule." While the circuit court erred in this respect the error is not reversible.

Initially we note the phrase "the discovery rule, " standing alone, can be misleading because certain statutes of limitations have their own built-in discovery rules.^[2]One of these statutes is the statute of limitations for actions brought under the Act, which is set forth in section 15-78-110 and states, in pertinent part, "Except as provided for in [s]ection 15-3-40, any action brought pursuant to [the Act] is forever barred unless an action is commenced within two years after the date the loss was or should have been discovered . . . ." (emphasis added). "Loss" is defined in the Act as follows:

bodily injury, disease, death, or damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death, pain and suffering, mental anguish, and any other element of actual damages recoverable in actions for negligence, but does not include the intentional infliction of emotional harm.

S.C. Code Ann. § 15-78-30(f).

This court previously applied the discovery rule under section 15-3-535 of the South Carolina Code (2005) to determine when a cause of action arising under the Act accrues. See Logan v. Cherokee Landscaping & Grading Co., 389 S.C. 611, 617-18, 698 S.E.2d 879, 883 (Ct. App. 2010); Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 123, 542 S.E.2d 736, 740 (Ct. App. 2001); Joubert v. S.C. Dep't of Soc. Servs., 341 S.C. 176, 190, 534 S.E.2d 1, 8 (Ct. App. 2000) (citing Barr v. City of Rock Hill, 330 S.C. 640, 643-46, 500 S.E.2d 157, 159-60 (Ct. App. 1998)). Section 15-3-535 states, "Except as to actions initiated under [s]ection 15-3-545, all actions initiated under [s]ection 15-3-530(5) must be commenced within three years after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action." While the date a possible "cause of action" should have been discovered will not always be the same as the date "the loss" should have been discovered (the date of accrual under section 15-78-110), ^[3] these two dates are identical in the present case.

For purposes of determining the date of accrual under section 15-3-535, we find Dean v. Ruscon Corp., 321 S.C. 360, 468 S.E.2d 645 (1996), to be instructive. In Dean, our supreme court set forth a specific standard on what constitutes the exercise of reasonable diligence in discovering the existence of a cause of action:

We have interpreted the "exercise of reasonable diligence" to mean that the injured party must act with some promptness where the facts and circumstances of an injury place a reasonable person of common knowledge and experience on notice that a claim against another party might exist. Moreover, the fact that the injured party may not comprehend the full extent of the damage is immaterial.

Id. at 363-64, 468 S.E.2d at 647 (second and third emphases added) (citation omitted).

In other words, the discovery rule does not "require absolute certainty a cause of action exists before the statute of limitations begins to run." Bayle, 344 S.C. at 126, 542 S.E.2d at 741. The statute begins to run from the point that the "facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist" and "not when advice of counsel is sought or a full-blown theory of recovery developed." Epstein, 363 S.C. at 376, 610 S.E.2d at 818.

Further, the plaintiff need not know that his injury is permanent to be on notice he might have a claim against another party. In Young v. South Carolina Department of Corrections, this court held that the plaintiff

was not required to know the sight in his right eye was permanently lost to be put on notice the Department of Corrections had caused him injury through the delay in diagnosis and treatment. When he was told of the scar tissue by two separate doctors, who both displayed concern over the delay in diagnosis and treatment, Young discovered or should have discovered potential damage to his sight.

333 S.C. 714, 721, 511 S.E.2d 413, 417 (Ct. App. 1999) (second emphasis added); see also Knox v. Greenville Hosp. Sys., 362 S.C. 566, 571-72, 608 S.E.2d 459, 462-63 (Ct. App. 2005) (holding a "reasonably diligent person of common knowledge and experience, under the admitted facts, would have been aware" when a nurse improperly inserted an intravenous needle into the plaintiff's wrist "that a claim against the [h]ospital might exist, even though the full extent of the injury was only subsequently discovered." (emphasis added)).

Here, according to Mother's deposition, Dr. Augustine stated "Oops, I hurt his arm" immediately after he delivered Mother's son (Child) on July 23, 2001. The next day, Dr. Augustine checked on Mother and commented on Child's arm injury: "Injuries like this one usually heal fully in about two weeks[.]" However, two weeks later, Child's arm was no better than it was when he was delivered. Given Dr. Augustine's attribution of Child's arm injury to the way he delivered Child, i.e., "Oops, I hurt his arm, " and his assurance that an injury of this type usually heals within two weeks, a reasonable person of common knowledge would have discovered that a claim against Respondent might exist the day after this two-week period expired. This day is also the day Mother should have discovered the "loss" for purposes of applying the language of section 15-78-110, i.e., "[A]ny action brought pursuant to [the Act] is forever barred unless an action is commenced within two years after the date the loss was or should have been discovered." (emphasis added).

Because Dr. Augustine delivered Child on July 23, 2001, Mother should have discovered that Child suffered a loss or might have a claim against Respondent on August 7, 2001, two weeks and one day after Child's delivery. Taking into consideration section 15-3-545(D), which contains a seven-year tolling provision for minors, the two-year statute of limitations would have expired on August 7, 2010, well before the present action was filed on June 17, 2011. Even if we consider the accrual date to be December 5, 2001, when Dr. Gilpin informed Mother that Child's "particular deficit was indicative of marginal recovery, " the statute of limitations would have expired on December 5, 2010. Likewise, considering an accrual date of January 11, 2002, the date Mother saw an attorney "to inquire about the brachial plexus injuries to see if there was anything that [she] could actually do, "^[4] the statute of limitations would have expired on January 11, 2011.

We appreciate Mother's argument that Dr. Redmond indicated it could not be known whether Child's injury would be permanent until he was approximately eighteen to twenty-four months of age. However, our jurisprudence on the discovery rule does not allow a plaintiff to wait until she is certain the injury is permanent to file suit. Rather, Mother was on notice that Child suffered a loss or might have a claim against Respondent after the two-week recovery period referenced by Dr. Augustine had expired or, at the latest, when she consulted with an attorney on January 11, 2002.

Mother also argues that filing "some medical negligence birth injury cases in the first two years is a near impossibility" in light of South Carolina's physician affidavit requirement for filing a medical malpractice action. Mother further states, "[I]t would be impossible or exceptionally difficult to secure an affidavit during the child's first year or two of life substantiating medical malpractice when the injury may ultimately prove to be temporary, [as] temporary injuries can occur without medical negligence." However, Mother had at least nine years after Child's birth within which to file an action on Child's behalf, giving her plenty of time after Child reached twenty-four months of age to obtain the requisite physician affidavit before filing suit.

Mother's second assignment of error is the circuit court's imputation of Mother's knowledge to Child in applying the discovery rule. We find no error in this regard.^[5] We find the language of the seven-year tolling provision for minors set forth in section 15-3-545(D) to be instructive on this question:

Notwithstanding the provisions of [s]ection 15-3-40, if a person entitled to bring an action against a licensed health care provider acting within the scope of his profession is under the age of majority at the date of the treatment, omission, or operation giving rise to the cause of action, the time period or periods limiting

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