Wilkinson v. E. Cooper Cmty. Hosp., Inc.

410 S.C. 163

763 S.E.2d 426

Vicki L. WILKINSON, Appellant

v.EAST COOPER COMMUNITY HOSPITAL, INC., d/b/a East Cooper Regional Medical Center, Carolina Plastic Surgery Institute, PA, and Thomas X. Hahm, M.D., Respondents.

Appellate Case No. 2012–213464.

Supreme Court of South Carolina.

Oct. 3, 2014.

Rehearing Denied Oct. 3, 2014.

Robert H. Hood, James Bernard Hood, Harry Cooper Wilson, III, and Deborah Harrison Sheffield, all of Hood Law Firm, L.L.C., of Charleston; Daniel Simmons McQueeney, Jr., Kathleen Fowler Monoc, and Lindsay Kathryn Smith–Yancey, all of Pratt–Thomas Walker, P.A., of Charleston, for Respondents.

John S. Nichols, of Bluestein Nichols Thompson & Delgado, L.L.C., of Columbia, and Daniel Nathan Hughey, of Hughey Law Firm, L.L.C., of Mt. Pleasant, for Appellant.

Andrew A. Mathias, of Nexsen Pruet, L.L.C., of Greenville, for Amicus Curiae, South Carolina Hospital Association.

ORDER

The petitions for rehearing are denied. This Court does, however, substitute the attached amended majority opinion for the majority opinion previously filed in this matter. The amended opinion deletes the last sentence of the second paragraph on page nine of the original majority opinion.

/s/JEAN H. TOAL, C.J.

/s/DONALD W. BEATTY, J.

/s/JOHN KITTREDGE, J.

/s/KAYE G. HEARN, J.

/s/FOR THE COURT

I would grant the petitions for rehearing.

/s/COSTA M. PLEICONES, J.

/s/FOR THE COURT

JUSTICE BEATTY.

In this medical malpractice case, Vicki Wilkinson appeals the circuit court's order dismissing her civil action with prejudice based on the motions filed by East Cooper Community Hospital, Inc. (“East Cooper”), Carolina Aesthetic Plastic Surgery Institute, P.A. (“Carolina Aesthetic Plastic Surgery”), and Dr. Thomas Hahm (collectively “Respondents”). Wilkinson asserts the court erred in finding: (1) the statute of limitations was not tolled because she failed to file an expert witness affidavit contemporaneously with her Notice of Intent to File Suit (“NOI”) pursuant to section 15–79–125 of the South Carolina Code ;¹ and (2) she failed to file her Complaint within the applicable statute of limitations given she did not contemporaneously file an expert witness affidavit with the Complaint or within forty-five days thereafter in accordance with section 15–36–100(C).²

This appeal requires the Court to review the decision of the Court of Appeals in Ranucci v. Crain, 397 S.C. 168, 723 S.E.2d 242 (Ct.App.2012)( “Ranucci I”), which held the pre-litigation filing requirement for a medical malpractice case found in section 15–79–125 incorporates only the parts of section 15–36–100 that relate to the preparation and content of an expert's affidavit. Recently, we reversed Ranucci I, holding that section 15–79–125(A) incorporates section 15–36–100 in its entirety. Ranucci v. Crain, 409 S.C. 493, 763 S.E.2d 189 (2014)(“Ranucci II”). Therefore, we hold that Wilkinson could invoke section 15–36–100(C)(1), which extended the time for filing the expert witness affidavit with her NOI and tolled the applicable statute of limitations. However, because the analysis in Ranucci II was confined to the dismissal of the pre-litigation NOI, it is not dispositive since the instant case involves the next procedural step in medical malpractice litigation. Specifically, we must analyze whether Wilkinson's failure to file an expert witness affidavit with her Complaint warranted the dismissal of her civil action. We hold the circuit court erred in dismissing Wilkinson's civil action as the expert affidavit filed with the NOI satisfied the statutory requirements of section 15–36–100 and, thus, it was not necessary to file a second expert affidavit in the same civil action. Accordingly, we reverse the circuit court's order and remand the case for further proceedings.

I. Factual/Procedural History

On September 4, 2008, Wilkinson was admitted to East Cooper to undergo reconstructive breast surgery performed by Dr. Hahm. Following the surgery, Wilkinson experienced complications throughout 2008 that required additional medical procedures.

On September 1, 2011, Wilkinson filed an NOI pursuant to section 15–79–125 against Respondents and several other defendants, which was designated as Case No. 2011–CP–10–6306.³ Because the statute of limitations was due to expire within a short period of time, Wilkinson did not include an expert witness affidavit with the NOI, but stated that she would file one at a later date. On October 5, 2011, Wilkinson filed the affidavit of Dr. John D. Newkirk, a board certified plastic surgeon.

On January 25, 2012, five days after an unsuccessful attempt at pre-litigation mediation, Wilkinson filed a Complaint against the defendants named in the NOI, which was designated as Case No. 2012–CP–10–0558. Wilkinson did not file an expert affidavit with the Complaint nor did she reference the NOI or otherwise explain why she did not file an expert affidavit with the Complaint.

Respondents separately answered and moved to dismiss pursuant to Rule 12(b)(6) of the South Carolina Rules of Civil Procedure on the ground the statute of limitations had expired. Citing Ranucci I, East Cooper asserted the NOI did not toll the three-year statute of limitations⁴ because Wilkinson failed to contemporaneously file an expert affidavit with the NOI pursuant to section 15–79–125. Therefore, East Cooper argued that Wilkinson's Complaint, which was filed four months after the expiration of the statute of limitations, should be dismissed. Alternatively, even if the statute of limitations did not expire on September 4, 2011, East Cooper claimed Wilkinson's failure to file an expert affidavit with her Complaint or within forty-five days thereafter violated section 15–36–100 and warranted dismissal. In a separate memorandum in support of their motion to dismiss, Respondents Carolina Aesthetic Plastic Surgery and Dr. Hahm reiterated the arguments raised by East Cooper.

Wilkinson filed a memorandum in opposition to Respondents' motions. Because Respondents engaged in pre-litigation mediation and did not move to dismiss the NOI during the pre-litigation proceedings, Wilkinson maintained Respondents waived any argument regarding her NOI and the expiration of the statute of limitations. Additionally, Wilkinson asserted the failure to file an expert affidavit with her Complaint did not warrant dismissal as Respondents were already in possession of the previously filed affidavit of Dr. Newkirk.

After a hearing, the circuit court granted Respondents' motions to dismiss with prejudice. Based on Ranucci I, the court found that Wilkinson: (1) failed to file an expert affidavit contemporaneously with her NOI as required by section 15–79–125 and, thus, the statute of limitations was not tolled; and (2) failed to file an expert affidavit contemporaneously with her Complaint or within forty-five days thereafter as required by section 15–36–100. The court rejected Wilkinson's contention that Respondents' participation in statutorily mandated pre-litigation mediation waived their right to challenge the NOI. The court also found the exception codified in section 15–36–100(C)(1), which extends the time for filing an expert affidavit with the Complaint, was inapplicable because Wilkinson did not provide any explanation as to why the expert affidavit was not filed and, in any event, failed to file an expert affidavit within forty-five days of filing her Complaint.

Following the circuit court's denial of her motion for reconsideration, Wilkinson appealed to the Court of Appeals. This Court granted Wilkinson's motion to certify the appeal pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.

II. Standard of Review

“On appeal from the dismissal of a case pursuant to Rule 12(b)(6), an appellate court applies the same standard of review as the trial court.” Rydde v. Morris, 381 S.C. 643, 646, 675 S.E.2d 431, 433 (2009). “That standard requires the Court to construe the complaint in a light most favorable to the nonmovant and determine if the facts alleged and the inferences reasonably deducible from the pleadings would entitle the plaintiff to relief on any theory of the case.” Id. (internal quotations omitted). The Court may sustain the dismissal when “the facts alleged in the complaint do not support relief under any theory of law.” Flateau v. Harrelson, 355 S.C. 197, 202, 584 S.E.2d 413, 416 (Ct.App.2003).

III. Discussion

A. Arguments

Initially, Wilkinson challenges the propriety of Ranucci I and urges this Court to reverse the decision of the Court of Appeals.⁵ If the Court reverses Ranucci I, Wilkinson claims her NOI tolled the statute of limitations and, therefore, neither the NOI nor the Complaint should have been dismissed as untimely. However, even if her Complaint is deemed deficient based on her failure to contemporaneously file an expert affidavit, she contends any deficiency did not mandate dismissal. Rather, she asserts any dismissal under section 15–36–100(C)(1) is permissive given the statute states that a plaintiff's Complaint is “subject to dismissal for failure to state a claim.” (Emphasis added.) Because dismissal is not statutorily mandated, Wilkinson claims the appropriate remedy would be for her to be given an opportunity to cure any defect as the Court permitted a plaintiff to file an amended Complaint after the expiration of the statute of limitations in Spence v. Spence, 368 S.C. 106, 628 S.E.2d 869 (2006).⁶

Alternatively, Wilkinson maintains her Complaint was not deficient as it stated facts sufficient to support a cause of action and Respondents were already in possession of the expert affidavit that was filed with the NOI. Thus, because Respondents were not prejudiced by the alleged deficiency, Wilkinson claims dismissal was not the appropriate sanction.

B. Application of Ranucci II as to the Sufficiency of the NOI

Recently, this Court reversed Ranucci I. Ranucci v. Crain, 409 S.C. 493, 763 S.E.2d 189 (2014) (“Ranucci II ”). In so ruling, we held that section 15–79–125(A) incorporates ...