THE STATE OF SOUTH CAROLINA
In The Court of Appeals


APPEAL FROM RICHLAND COUNTY
G. Thomas Cooper, Jr., Circuit Court Judge


Case No. 06-CP-40-0778


Charles Lee Kerr, as Personal Representative for the
Estate of Marta Butler Kerr, deceased, ................................................ Appellant,

v.

Richland Memorial Hospital, .............................................................. Respondent.


BRIEF OF RESPONDENT


  Andrew F. Lindemann
William H. Davidson, II
DAVIDSON & LINDEMANN, P.A. 1611 Devonshire Drive
Post Office Box 7217
Columbia, South Carolina 29202
(803) 806-8222

Counsel for Respondent

TABLE OF CONTENTS

Table of Authorities ........................................................................................................................................ ii

Statement of the Case ................................................................................................................................... 1

Arguments ....................................................................................................................................................... 3

I. The lower court ruled correctly that the Appellant's medical malpractice claim is barred by the six-year statute of repose..................................................................................................................... 3

II. The lower court ruled correctly that Richland Memorial Hospital may not be held liable under the Tort Claims Act for the negligent acts of an independent contractor...................................... 10

Conclusion .......................................................................................................................................... 15



TABLE OF AUTHORITIES

Cases

Baker v. Sanders,
301 S.C. 170, 392 S.E.2d 229 (1990). ....................................................................................................... 7

Brown v. County of Horry,
308 S.C. 180, 417 S.E.2d 565 (1992). ....................................................................................................... 9

Craft v. State,
281 S.C. 205, 314 S.E.2d 330 (1984). ....................................................................................................... 8

Gosnell v. Dorchester School District No. 2,
301 S.C. 21, 389 S.E.2d 865 (1990). .......................................................................................................... 6

Harrison v. Bevilacqua,
354 S.C. 129, 580 S.E.2d 109 (2003). ........................................................................................................ 3
4

Henderson v. Evans,
268 S.C. 127, 232 S.E.2d 331 (1977). ........................................................................................................ 8

Johnson v. Phifer,
309 S.C. 505, 424 S.E.2d 532 (Ct. App. 1992). ......................................................................................... 4

Langley v. Pierce,
313 S.C. 401, 438 S.E.2d 242 (1993). ........................................................................................................ 3
............................................................................................................................................................................4

Littlefield v. South Carolina Forestry Comm.,
337 S.C. 348, 523 S.E.2d 781 (1999). ....................................................................................................... 8

Madison v. Babcock Center, Inc.,
371 S.C. 123, 638 S.E.2d 650 (2006). ...................................................................................................... 13

O'Hagan v. Fraternal Aid Union,
144 S.C. 84, 141 S.E. 893 (1928). ............................................................................................................. 12

Osbourne v. Adams,
346 S.C. 4, 550 S.E.2d 319 (2001). ........................................................................................................... 11
...........................................................................................................................................................................12

Ramey v. Ramey,
273 S.C. 680, 258 S.E.2d 883 (1979). ....................................................................................................... 9

Simmons v. Tuomey Regional Medical Center,
341 S.C. 32, 533 S.E.2d 312 (2000). ........................................................................................................ 11

State v. McGrier,
378 S.C. 320, 663 S.E.2d 15, 19 (2008)..................................................................................................... 8

Strother v. Lexington County Recreation Commission,
332 S.C. 54, 504 S.E.2d 117 (1998). .......................................................................................................... 7

Watson v. Sellers,
299 S.C. 426, 385 S.E.2d 369 (Ct. App. 1989). ......................................................................................... 7

Wright v. Colleton County School District,
301 S.C. 282, 391 S.E.2d 564 (1990). ........................................................................................................ 6
..........................................................................................................................................................................10

Statutes and Rules

S.C. Code Ann. § 14-1-50. .......................................................................................................................... 13

S.C. Code Ann. § 15-3-545(A). ........................................................................................................... passim

S.C. Code Ann. § 15-78-20(f). ....................................................................................................................... 7

S.C. Code Ann. § 15-78-30(c). .................................................................................................................... 12

S.C. Code Ann. § 15-78-40. .......................................................................................................................... 5
.............................................................................................................................................................................6
.............................................................................................................................................................................7

S.C. Code Ann. § 15-78-50(b). ...................................................................................................................... 5
.............................................................................................................................................................................6
.............................................................................................................................................................................7

S.C. Code Ann. § 15-78-60(20). ................................................................................................................. 12
..........................................................................................................................................................................14

S.C. Code Ann. § 15-78-100. ....................................................................................................................... 8

STATEMENT OF THE CASE

This is a medical malpractice action. The Appellant, Frank W. Kerr, as Personal Representative of the Estate of Marta Butler Kerr, alleges that a pathology specimen from an excised skin mole was misinterpreted on or about January 25, 1996 by Dr. James Reynolds. Dr. Reynolds was an independent contractor for the Respondent Richland Memorial Hospital and performed pathological services at the Hospital. Kerr further alleges in his complaint that a later wide-spread melanoma, commonly referred to as skin cancer, was related to the excised mole and could have been cured if the pathology specimen had been accurately interpreted in January 1996. (R. 8). The melanoma was diagnosed on May 22, 2001. The decedent died on September 7, 2002. (R. 8).

This medical malpractice action was filed on April 29, 2003, against Richland Memorial Hospital as the sole defendant. (R. 7). In 1996, Richland Memorial Hospital was a governmental hospital, and as a result, this action was brought pursuant to the South Carolina Tort Claims Act. (R. 7).

The Hospital filed a motion for summary judgment on several grounds, including the expiration of the six-year statute of repose. (R. 16). That motion was heard by Circuit Court Judge G. Thomas Cooper, Jr. on July 30, 2007. By order filed September 6, 2007, Judge Cooper granted the Hospital's motion finding that the medical malpractice claim was barred by the statute of repose. He further ruled that the Hospital is not liable under the Tort Claims Act for the alleged negligent acts of Dr. Reynolds, who was an independent contractor. (R. 2-5). Kerr then filed a motion for reconsideration, which was subsequently denied by order filed October 11, 2007. (R. 6).

The Appellant Kerr then filed a timely appeal to this Court.

ARGUMENTS

I. The lower court ruled correctly that the Appellant's medical malpractice claim is barred by the six-year statute of repose.

The Appellant Kerr contends that Judge Cooper erred in concluding that the six-year statute of repose for medical malpractice actions applies to governmental hospitals sued under the South Carolina Tort Claims Act. Kerr argues that the statute of limitations section of the Tort Claims Act does not include a statute of repose specifically for Tort Claims Act cases, and as a result, the General Assembly intended for medical malpractice claims against governmental or public health care providers to have no period of repose while medical malpractice claims against non-governmental or private health care providers must be commenced within six years of the occurrence. Kerr's position is contrary to existing case law and statutory law. In addition, the interpretation of the applicable statutes urged by Kerr would be violative of the Equal Protection Clauses of the United States and South Carolina Constitutions.

Section 15-3-545(A) imposes an absolute time limit of six years for medical malpractice actions. "[T]he six-year repose provision in § 15-3-545 constitutes an outer limit beyond which a medical malpractice claim is barred, regardless of whether it has or should have been discovered." Harrison v. Bevilacqua, 354 S.C. 129, 580 S.E.2d 109, 113 (2003), citing Langley v. Pierce, 313 S.C. 401, 438 S.E.2d 242, 243 (1993). The six-year period is measured from the date of occurrence, not the date of accrual. Johnson v. Phifer, 309 S.C. 505, 424 S.E.2d 532, 533 (Ct. App. 1992). Moreover, in Langley v. Pierce, 313 S.C. 401, 438 S.E.2d 242 (1993), the Supreme Court held that the statute of repose is "an absolute time limit beyond which liability no longer exists and is not tolled for any reason because to do so would upset the economic balance struck by the legislative body." 438 S.E.2d at 243.

At the outset, it should be explained that there is no dispute that Kerr failed to commence this action within six years of the occurrence that serves as the basis of this action. (R. 31-32). The alleged negligent act occurred on or about January 25, 1996, while this action was not filed until more than six years later on April 29, 2003. (R. 7-8). As counsel for Kerr conceded during the motion hearing, "by the time [Appellant] came to me, he had clearly lost his right under 15-3-545(A), the right to pursue a private entity because of the medical malpractice statute of repose. Six years had transpired [sic]." (R. 31). Therefore, the dispositive question is purely legal in nature -- does the statute of repose set forth in Section 15-3-545(A) apply to governmental or public health care providers including Richland Memorial Hospital?

In correctly finding that Section 15-3-545(A) does apply in Tort Claims Act cases, Judge Cooper relied on the Supreme Court's decision in Harrison v. Bevilacqua, 354 S.C. 129, 580 S.E.2d 109 (2003), in which the Court rejected the continuous treatment rule in medical malpractice cases. The sole remaining defendant in that case was the South Carolina Department of Mental Health, which was sued pursuant to the Tort Claims Act. In concluding that the continuous treatment rule did not apply in that case, the Supreme Court recognized that the rule would conflict with the statute of repose set forth in Section 15-3-545(A). The Court thus found that the statute of repose did apply to Tort Claims Act cases. Indeed, the Supreme Court held that "the instant case implicates ... the general medical malpractice six-year repose statute." 580 S.E.2d at 114. The Court further found that "under the peculiar facts of this case, application of the continuous treatment rule would infringe upon two areas which the Legislature has spoken on regarding absolute limitations" one of which is the statute of repose for medical malpractice actions. Id. (Emphasis in original).

Therefore, Kerr's attempts to distinguish or discredit the Harrison opinion are unavailing. Clearly, the Supreme Court has already determined that the statute of repose set forth in Section 15-3-545(A) is applicable to Tort Claims Act cases. If not, the Court's basis in rejecting the application of the continuous treatment rule against the Department of Mental Health would be invalid.

In addition to being supported by the decision in Harrison, Judge Cooper's ruling is also supported by the proper application of Sections 15-78-40 and 15-78-50(b) of the Tort Claims Act. Section 15-78-40 provides: "The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances ..." S.C. Code Ann. § 15-78-40. (Emphasis added). Moreover, Section 15-78-50(b) provides that "[i]n no case is a governmental entity liable for a tort of an employee where that employee, if a private person, would not be liable under the laws of this State." S.C. Code Ann. § 15-78-50(b).

Citing Section 15-78-50(b), the Supreme Court has held that "[t]he Tort Claims Act allows recovery to 'any person who may suffer a loss proximately caused by a tort' committed by a government employee if a private person would be liable for that tort under South Carolina law." Gosnell v. Dorchester School District No. 2, 301 S.C. 21, 389 S.E.2d 865, 865 (1990). In Wright v. Colleton County School District, 301 S.C. 282, 391 S.E.2d 564 (1990), the Supreme Court reiterated: "Section 15-78-50 permits recovery to 'any person who may suffer a loss proximately caused by a tort' committed by the State except that the State would not be liable for a tort of an employee if a private person would not be liable for that tort under South Carolina law." 391 S.E.2d at 568-569. (Emphasis added).

As counsel for Kerr admitted during the motion hearing, liability for the alleged acts of medical malpractice against a private entity or a private person, such as Dr. Reynolds, is barred by the statute of repose. To reiterate, counsel stated: "by the time [Appellant] came to me, he had clearly lost his right under 15-3-545(A), the right to pursue a private entity because of the medical malpractice statute of repose. Six years had transpired [sic]." (R. 31). (Emphasis added). Thus, Kerr admits that he has no valid claim against a private entity; yet, he insists that he can pursue that claim against a governmental hospital. That result is clearly contrary to Sections 15-78-40 and 15-78-50(b). Given the fact that a private health care provider would not be liable to Kerr due to the statute of repose, it logically follows that Richland Memorial Hospital should likewise not incur such liability. The Tort Claims Act clearly provides that a governmental hospital cannot have any liability where a private individual under like circumstances has no liability.

Moreover, Judge Cooper's ruling is supported by the rule of statutory construction adopted by the General Assembly and applied by the appellate courts in construing the Tort Claims Act. That rule holds that provisions of the Tort Claims Act "must be liberally construed in favor of limiting the liability of the State." See, S.C. Code Ann. § 15-78-20(f). See also, Baker v. Sanders, 301 S.C. 170, 392 S.E.2d 229 (1990); Strother v. Lexington County Recreation Commission, 332 S.C. 54, 504 S.E.2d 117 (1998). This rule of construction is also in accord with the well established principle that any law in derogation of the common law must be strictly construed. Watson v. Sellers, 299 S.C. 426, 385 S.E.2d 369 (Ct. App. 1989). There is no question that the Tort Claims Act, which waives sovereign immunity in certain particulars, is in derogation of the common law. Thus, provisions of the Tort Claims Act should not be read as rejecting the statute of repose for medical malpractice actions and subjecting governmental health care providers to an unlimited period for malpractice suits to be brought. Clearly, Kerr's construction of Section 15-78-100 does not limit the liability of the State and its political subdivisions and should be rejected.

Finally, Kerr's construction of Section 15-78-100 and Section 15-3-545(A) would be violative of the Equal Protection Clause. The Supreme Court recently reaffirmed that "[c]onstitutional constructions of statutes are not only judicially preferred, they are mandated; a possible constitutional construction must prevail over an unconstitutional interpretation." State v. McGrier, 378 S.C. 320, 663 S.E.2d 15, 19 (2008), citing Henderson v. Evans, 268 S.C. 127, 232 S.E.2d 331 (1977). Similarly, "[a]ll statutes are presumed constitutional and will, if possible be construed as to render them valid." Craft v. State, 281 S.C. 205, 314 S.E.2d 330, 331 (1984). See also, Littlefield v. South Carolina Forestry Comm., 337 S.C. 348, 523 S.E.2d 781, 783 (1999) ("When the Court considers the constitutionality of a statute passed by the General Assembly, it construes the statute so as to render it valid if possible").

Therefore, in determining whether the statute of repose set forth in Section 15-3-545(A) applies to Tort Claims Act cases, the Court must ensure that its construction of the applicable statutes is constitutional. A statute satisfies equal protection where the classification created by the statute "is reasonably related to a proper legislative purpose and the members of each class are treated equally." Brown v. County of Horry, 308 S.C. 180, 417 S.E.2d 565, 568 (1992). "The prevailing equal protection standard is whether a legislative classification which excludes a certain class of persons is rationally related to the object of the statute." Ramey v. Ramey, 273 S.C. 680, 258 S.E.2d 883, 885 (1979). Richland Memorial Hospital submits that a construction which applies a statute of repose to private health care providers and not to governmental or public health care providers would violate equal protection. There is absolutely no rational basis or proper legislative purpose served by treating public and private health care providers diametrically differently in this regard. There can be no purpose for subjecting governmental and public health care providers to a longer period of time during which they are subject to medical malpractice lawsuits. To the contrary, if that were indeed the law, that will actually make it more difficult to attract qualified medical personnel to the public sector. Moreover, governmental health care providers would be subject to greater -- not lesser -- liability than private health care providers thereby negatively impacting the public coffers and the finite assets of governmental entities.1 Consequently, the construction urged by the Appellant Kerr would clearly be unconstitutional and hence should be rejected on this additional basis.

In sum, it is illogical, unreasonable and unconstitutional to conclude that the General Assembly intended to protect private health care providers with a six-year statute of repose while subjecting public health care providers to no statute of repose at all. Clearly, the ruling of the lower court applying the six-year statute of repose to all medical malpractice cases, including this action against Richland Memorial Hospital, should be affirmed.

II. The lower court ruled correctly that Richland Memorial Hospital may not be held liable under the Tort Claims Act for the negligent acts of an independent contractor.

The Appellant Kerr further argues on appeal that Judge Cooper erred in finding that Richland Memorial Hospital is not liable under the Tort Claims Act for the acts or omissions of Dr. Reynolds, who was an independent contractor. Kerr does not dispute that Dr. Reynolds was an independent contractor. Instead, he contends that Judge Cooper should have found that the Hospital may be held vicariously liable for the negligence of Dr. Reynolds under the holdings in Simmons v. Tuomey Regional Medical Center, 341 S.C. 32, 533 S.E.2d 312 (2000), and Osbourne v. Adams, 346 S.C. 4, 550 S.E.2d 319 (2001). In those cases, the Supreme Court held that a hospital may be held vicariously liable for the negligent acts of a physician where the plaintiff can show the following three elements: "(1) that the hospital held itself out to the public by offering to provide services; (2) the plaintiff looked to the hospital, rather than an individual physician, for care; and (3) that a person in similar circumstances reasonably would have believed that the physician who treated him or her was a hospital employee." Simmons, 533 S.E.2d at 323.

Despite making the claim that summary judgment should have been denied under a Simmons theory, Kerr has never pled in his complaint nor presented any evidence to prove the three elements required to be proven. There is simply no evidence of any of the three elements, and on that basis alone, Kerr's reliance on the Simmons case should be rejected.

However, it also important to recognize that Simmons, which addresses only the common law, conflicts with statutory law when applied to a governmental entity such as Richland Memorial Hospital. In Osbourne, the Supreme Court explained that Simmons "merely clarified the common law of this State." 550 S.E.2d at 323. The Court further pointed out that Simmons "did not create a new cause of action or abolish any existing immunity. 550 S.E.2d at 324. (Emphasis added). Thus, pursuant to the Tort Claims Act, a governmental hospital such as Richland Memorial Hospital may not be held liable in tort for the acts or omissions of an independent contractor. Section 15-78-60(20) provides that the Hospital is entitled to sovereign immunity for "an act or omission of a person other than an employee." See, S.C. Code Ann. § 15-78-60(20). In accordance with Section 15-78-30(c), the term "employee" "does not include an independent contractor doing business with the State or any political subdivision thereof." See, S.C. Code Ann. § 15-78-30(c). Consequently, Judge Cooper was correct in concluding that the Hospital enjoys absolute sovereign immunity for the acts or omissions committed by Dr. Reynolds, who was an independent contractor.

Where there is a conflict between the common law and statutory law, the statutory law always governs. See, O'Hagan v. Fraternal Aid Union, 144 S.C. 84, 141 S.E. 893, 894 (1928) (the common law is in force "until there has been some repeal or modification thereof by the law-making body"). See also, S.C. Code Ann. § 14-1-50 (providing that common law is in full effect "where it is not altered by the Code or inconsistent with the Constitution or laws of this State"). Thus, as to the conflict between the foregoing provisions of the Tort Claims Act and the common law principles explained in Simmons, the Tort Claims Act obviously controls. Accordingly, Judge Cooper was correct in not applying Simmons to the present case.

Finally, Kerr's reliance on the Supreme Court's decision in Madison v. Babcock Center, Inc., 371 S.C. 123, 638 S.E.2d 650 (2006), is misplaced. In Madison, the Supreme Court focused on its conclusion that the Department of Disabilities and Special Needs owed a common law duty of care directly to its mentally retarded or disabled clients. The Court explained that "[t]he fact that an independent contractor provided services to Appellant ... does not affect the existence of Department's duty." 638 S.E.2d at 660. The Court found that the Department owed a duty of care independent from that owed by the independent contractor. Importantly, the Supreme Court did not find that the Department was vicariously liable for the negligence of the independent contractor nor did the Court find that the Department owed a non-delegable duty. Thus, Madison does not stand for the proposition that a governmental entity may be held vicariously liable under the Tort Claims Act for the negligence committed by an independent contractor.

In the present case, Kerr is attempting to hold the Hospital vicariously liable under the holding in Simmons for the alleged negligence committed by Dr. Reynolds. Kerr does not cite any act or omission by someone other than Dr. Reynolds. Thus, the Supreme Court's holding in Madison does not preclude Judge Cooper's conclusion that the Hospital is entitled to sovereign immunity in accordance with Section 15-78-60(20) and may not be held vicariously liable for the negligence of Dr. Reynolds. On this additional basis, summary judgment in favor of the Hospital should be affirmed.

CONCLUSION

Based on the foregoing discussion and analysis, the Respondent, Richland Memorial Hospital, respectfully requests that this Court affirm the orders of Judge G. Thomas Cooper, Jr. granting summary judgment to the Hospital.

 

Respectfully submitted,

DAVIDSON & LINDEMANN, P.A.

BY:______________________________
ANDREW F. LINDEMANN
WILLIAM H. DAVIDSON, II
1611 Devonshire Drive
Post Office Box 8568
Columbia, South Carolina 29202
(803) 806-8222

Counsel for Respondent

Columbia, South Carolina

September 3, 2008


1 Typically, the General Assembly attempts to limit rather than expand the liability of government vis-a-vis the private sector in order protect the public fisc.  The Tort Claims Act monetary caps on liability are a perfect example of this.  In Wright v. Colleton County School District, 301 S.C. 282, 391 S.E.2d 564 (1990), the Supreme Court found that the caps were rationally related to the legitimate governmental interest of "relieving the government from hardships of unlimited and unqualified liability and preserving the finite assets of governmental entities which are needed for an effective and efficient government."  391 S.E.2d at 570.  The Court noted that the caps "balanced the needs for services and demand for reasonable taxes against the fair reimbursement of injured tort victims."  Id