South Carolina Medical Malpractice Laws & Statutory Rules

Medical malpractice lawsuits are often extremely complicated, and that's true in all states—not just South Carolina. This article will summarize some of the most important rules that apply to medical malpractice cases in South Carolina, including:

• the time period for filing this type of lawsuit in the state's civil court system
• procedural rules for getting a medical malpractice case started in South Carolina, and
• the state's "caps" (or limits) on the amount of compensation that can be awarded if the case succeeds.

The South Carolina Medical Malpractice Statute of Limitations

South Carolina, like all states, has laws known as "statutes of limitations" that set strict time limits on filing different types of lawsuits in court. In South Carolina, an injured person (the "plaintiff") has three years to file a medical malpractice lawsuit. But when does the "clock" start running? South Carolina's law specifies that the clock starts on the date the malpractice occurred or on the date the patient discovers—or reasonably should have discovered—the medical error. However, the law also contains what's called a "statute of repose" that puts an absolute deadline of six years on filing a medical malpractice lawsuit. In other words, even if you didn't know about the malpractice—and couldn't have known about it—the law prevents you from filing a claim more than six years after it occurred.

The law also has special provisions for minors and situations involving "the placement and inadvertent, accidental, or unintentional leaving of a foreign object in the body." Those deadlines are as follows:

Minors. If the patient is younger than 18 years of age when the medical error was committed, the clock is "tolled" (or paused) for up to seven years, but the clock can't be paused for more than one year after the patient turns 18.

Foreign objects. In cases where the health care provider has left a foreign object—such as a surgical instrument or sponge—in the patient's body, the plaintiff has two years from the date the object was discovered, or reasonably should have been discovered, to file the lawsuit. But under no circumstances will the time limit be less than three years from the date of the procedure that resulted in the object's placement in the patient's body.

(S.C. Code § 15-3-545 (2022).)

Procedural Rules for Filing a Medical Malpractice Lawsuit in South Carolina

In their efforts at tort reform, many states have passed laws intended to prevent the filing of meritless medical malpractice lawsuits by making the potential plaintiff jump through some procedural hoops at the beginning of the case.

In South Carolina, before potential medical malpractice plaintiffs can file the lawsuit, they must first:

• file with the court and deliver to each health care provider to be sued a "Notice of Intent to File Suit"
• file with the court an "affidavit of expert witness," and
• engage in mediation with the defendant(s).

Here's a brief summary of what's required:

Notice of Intent to File Suit. Filing this document (and the affidavit of expert witness) pauses the clock on all applicable statutes of limitations. The notice must:

• name all defendant health care providers
• contain a "short and plain statement of the facts" showing that the plaintiff is entitled to relief
• be signed by the plaintiff or by the plaintiff's attorney, and
• include any standard interrogatories or similar disclosures required by the South Carolina Rules of Civil Procedure.

Affidavit of expert witness. This document must be completed by a medical expert qualified under South Carolina law and specify at least one negligent act (or omission) committed by the health care provider(s) and the factual basis for each claim based on the available evidence.

Mediation. Within 90 days—and no later than 120 days—from the date these documents were filed, the parties must participate in a mediation conference to try and resolve the matter before a medical malpractice lawsuit is filed. If the dispute cannot be resolved in mediation, the plaintiff can then initiate the lawsuit.

You can read all of these requirements at S.C. Code §§ 15-36-100 and 15-79-125. And if you have questions about how these rules apply to your specific case, it might be time to contact an experienced South Carolina medical malpractice attorney.

South Carolina's Caps on Damages in Medical Malpractice Cases

South Carolina law "caps" or limits noneconomic damages in medical malpractice cases. Noneconomic damages are "subjective" damages that are hard to quantify, such as pain and suffering, inconvenience, emotional distress, and loss of society and companionship. South Carolina's noneconomic damage limits get adjusted each year on January 1. For 2022, medical malpractice damages are capped at:

• $512,773 for any case involving a single health care provider or facility, and
• $1,538,319 total damages for any case involving more than one health care provider or facility, with a limit of $512,773 to be paid by any single provider or facility found liable in the case.

Current and historical damages caps are posted on the website of the South Carolina Revenue and Fiscal Affairs Office.

Note that economic damages, such as compensation for lost wages, lost earning capacity, and the costs of past or future medical care, are not affected by the cap. There are no limits on the amount of economic damages that can be awarded in a South Carolina medical malpractice case.

(S.C. Code §§ 15-32-210, 15-32-220 (2022).)