Nelson v. QHG OF SOUTH CAROLINA INC.

354 S.C. 290

580 S.E.2d 171

James NELSON, Jr., as guardian ad litem for Ty'Quain S. Nelson, a minor child, Appellant, v. QHG OF SOUTH CAROLINA, INC., d/b/a Carolina Hospital System, Quorum Health Group, Inc., Drs. Coker, Phillips, and Haswell, P.A., and Thomas W. Phillips, M.D., Defendants, of whom Drs. Coker, Phillips, and Haswell, P.A. and Thomas W. Phillips, M.D., Respondents.

No. 3626.

Court of Appeals of South Carolina.

Heard March 13, 2002.

Decided April 14, 2003.

Rehearing Denied May 21, 2003.

Edward L. Graham, of Florence, for Appellant.

Robert H. Hood, Hugh W. Buyck, and D. Nathan Hughey, all of Charleston, for Respondents.

ANDERSON, J.:

Ty'Quain S. Nelson's guardian ad litem brought suit against Thomas W. Phillips, M.D., Drs. Coker, Phillips, and Haswell, P.A., QHG of South Carolina, Inc., d/b/a Carolina Hospital System, and Quorum Health Group, Inc. seeking recovery for damages caused by alleged medical malpractice during Nelson's delivery. The circuit court granted the motion to dismiss on behalf of Drs. Coker, Phillips, and Haswell, P.A. and Thomas W. Phillips, M.D. Nelson appeals. We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

Ty'Quain S. Nelson was born on March 5, 1993. Thomas W. Phillips, M.D. was the attending obstetrician during Nelson's delivery. During delivery, a complication occurred where Nelson's shoulder became lodged behind the mother's pubic bone. This is known as shoulder dystocia. Nelson's upper and lower portions of his right-side brachial plexus nerves were injured during the delivery. The damage to the upper portion, called "Erb's palsy," involves primarily the shoulder, elbow, and their related muscles. The damage to the lower portion, known as "Klumpke's palsy," causes paralysis to the hand and results in fingers which are grossly deformed, misshapen, twisted, and contorted.

On February 26, 2001, Nelson sued Thomas W. Phillips, M.D., his medical group, Drs. Coker, Phillips, and Haswell, P.A., QHG of South Carolina, Inc., d/b/a Carolina Hospital System, and Quorum Health Group, Inc., alleging that Thomas W. Phillips, M.D. was negligent in managing and resolving the shoulder dystocia and Drs. Coker, Phillips, and Haswell, P.A. was liable under vicarious liability. This suit was brought by Nelson's maternal grandfather and current guardian ad litem, James Nelson, Jr. Shortly after filing the summons and complaint, Nelson's current counsel discovered that Nelson's mother, Latonia Nelson, who had previously been Nelson's guardian ad litem, had filed an earlier suit involving the same injuries.

The first lawsuit, filed in 1996, was styled "Tyqun [sic] Nelson, a minor under the age of fourteen (14) years, by his duly appointed Guardian Ad Litem Latonia Nelson, vs. Carolina Women's Center [sic] and Thomas W. Phillips, M.D." During the litigation of the 1996 suit, Thomas W. Phillips, M.D. made a motion to compel Nelson to answer interrogatories and requests for production. The circuit court issued an order compelling the discovery responses within fifteen days. Nelson failed to comply, and Thomas W. Phillips, M.D. filed a motion to dismiss based upon Nelson's failure to respond. Thomas W. Phillips, M.D. also moved for summary judgment on the grounds that Nelson had failed to offer any evidence of a breach of the reasonable standard of care through an expert witness.

The circuit court held the motion to dismiss in abeyance and gave Nelson forty-five additional days "in which to identify an expert witness and to provide a summary of the witnesses [sic] anticipated trial testimony." Nelson's attorney failed to comply, and the circuit court granted Thomas W. Phillips, M.D.'s summary judgment motion because there was no expert testimony establishing Thomas W. Phillips, M.D. had breached the standard of care. The order dismissed Nelson's 1996 complaint with prejudice. However, the circuit court granted Nelson an additional thirty days to file a motion to reconsider with an expert affidavit to establish a prima facie case. Nelson did not file a motion to reconsider.

Nelson's attorney in the current case filed a notice of dismissal voluntarily dismissing Thomas W. Phillips, M.D. pursuant to Rule 41(a)(1)(A), SCRCP. Nelson's notice of dismissal expressed his intent to proceed against all the other named defendants. After dismissal of the lawsuit against Thomas W. Phillips, M.D. pursuant to Rule 41(a)(1)(A), a motion to dismiss was filed on behalf of Drs. Coker, Phillips, and Haswell, P.A. and Thomas W. Phillips, M.D. The circuit court granted the motion to dismiss with prejudice for both Thomas W. Phillips, M.D. and Drs. Coker, Phillips, and Haswell, P.A. The circuit court ruled: (1) res judicata barred this action because the 1996 order granting Thomas W. Phillips, M.D. summary judgment was an adjudication of Nelson's case on the merits; (2) Nelson was collaterally estopped from asserting the same argument in this case because the summary judgment motion was an adjudication on the merits; and (3) under the theory of respondeat superior, a master is not liable if the servant is not liable.

STANDARD OF REVIEW

Under Rule 12(b)(6), SCRCP, a defendant may make a motion to dismiss based upon the plaintiffs failure to state a claim constituting a cause of action. Bergstrom v. Palmetto Health Alliance, 352 S.C. 221, 573 S.E.2d 805 (Ct.App.2002). The trial judge may dismiss the claim if the defendant demonstrates the plaintiff has failed "to state facts sufficient to constitute a cause of action" in the pleadings filed with the court. Williams v. Condon, 347 S.C. 227, 232-33, 553 S.E.2d 496, 499 (Ct.App.2001) (quoting Rule 12(b)(6), SCRCP). When considering the motion to dismiss for failure to state a claim, the trial court must base its ruling solely upon the allegations made on the face of the complaint. Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999); Stiles v. Onorato, 318 S.C. 297, 457 S.E.2d 601 (1995). If the facts and inferences drawn from the facts alleged on the complaint would entitle the plaintiff to relief on any theory, then the grant of a motion to dismiss for failure to state a claim is improper. Brown v. Leverette, 291 S.C. 364, 353 S.E.2d 697 (1987); McCormick v. England, 328 S.C. 627, 494 S.E.2d 431 (Ct.App.1997). The facts and inferences alleged on the complaint are viewed in the light most favorable to the plaintiff. Toussaint v. Ham, 292 S.C. 415, 357 S.E.2d 8 (1987); Cowart v. Poore, 337 S.C. 359, 523 S.E.2d 182 (Ct.App.1999); Mr. G. v. Mrs. G., 320 S.C. 305, 465 S.E.2d 101 (Ct.App.1995). Dismissal of an action pursuant to Rule 12(b)(6) is appealable. Williams, 347 S.C. at 233,553 S.E.2d at 500. The court of appeals applies the same standard of review that was implemented by the trial court. Id. In determining whether the trial court properly granted the motion to dismiss, we must consider whether the complaint, viewed in the light most favorable to the plaintiff, states any valid claim for relief. Bergstrom, 352 S.C. at 233,573 S.E.2d at 811.

LAW/ANALYSIS

I. EFFECT OF VOLUNTARY DISMISSAL

Nelson argues the circuit court erred when it granted the motion to dismiss of Thomas W. Phillips, M.D. and Drs. Coker, Phillips, and Haswell, P.A. because Thomas W. Phillips, M.D. had been voluntarily dismissed from the case and lacked standing to bring the motion on his behalf. Thomas W. Phillips, M.D. and Drs. Coker, Phillips, and Haswell, P.A. argue that Nelson's notice of voluntary dismissal was ineffective because it was conditioned upon allowing for continued viability against Drs. Coker, Phillips, and Haswell, P.A., while only dismissing Thomas W. Phillips, M.D. Thomas W. Phillips, M.D. and Drs. Coker, Phillips, and Haswell, P.A. also assert the notice of voluntary dismissal was ineffective because Drs. Coker, Phillips, and Haswell, P.A. and Thomas W. Phillips, M.D. were prejudiced when the notice on the voluntary dismissal did not provide the dismissal was without prejudice. We agree with Nelson.

Rule 41 of the South Carolina Rules of Civil Procedure allows a plaintiff to voluntarily dismiss a defendant from a lawsuit:

Subject to the provisions of Rule 23(c), of Rule 66(a), and of any statute, an action may be dismissed by the plaintiff without order of court (A) by filing and serving a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment.... Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice....

Rule 41(a)(1), SCRCP.

Under Rule 41(a)(1)(A), SCRCP, a plaintiff may dismiss an action without leave of court before the defendant files an answer or motion for summary judgment. Burry & Son Homebuilders, Inc. v. Ford, 310 S.C. 529, 426 S.E.2d 313 (1992); In re Morrison, 321 S.C. 370, 373, 468 S.E.2d 651, 652-53 (1996) ("[U]nder the plain language of paragraph (a)(1), a plaintiff has an unconditional right to voluntarily dismiss an action anytime before an answer or motion for summary judgment has been served."). Unless otherwise stated in the notice of dismissal or stipulation, the voluntary dismissal of an action by a plaintiff with the consent of the opposing party is without prejudice. Gamble v. State, 298 S.C. 176, 379 S.E.2d 118 (1989). Generally, a plaintiff is entitled to a voluntary non-suit without prejudice as a matter of right unless the defendant shows legal prejudice or important issues of public policy are present. Burry & Son Homebuilders,310 S.C. at 531,426 S.E.2d at 314; Bowen & Smoot v. Plumlee, 301 S.C. 262, 391 S.E.2d 558 (1990); Prime Med. Corp. v. First Med. Corp., 291 S.C. 296, 353 S.E.2d 294 (Ct.App.1987).

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