THE STATE OF SOUTH CAROLINA
In the Court of Appeals
APPEAL FROM CHARLESTON COUNTY
Court of Common Pleas
Mikell R. Scarborough, Presiding Judge
Case No. 2004-CP-10-1001
Nitus Joanne Linog, Appellant,
Mark Yampolsky, DDS and
Eloise Bradham, MD Respondents.
FINAL REPLY BRIEF OF APPELLANT
R. Fudenberg, SC Bar#72019
H. Waggoner, SCBar#5766
TABLE OF CONTENTS
Table of Authorities .......................................................................................................... iii
SOUTH CAROLINA HAS NEVER RULED OUT REVOCATION OF CONSENT
TO TOUCHING AS GROUNDS FOR BATTERY ......................................................... 1
. RESPONDENTS MISLEAD IN CLAIMING THAT ONLY FOREIGN
JURISDICTIONS ACCEPT LAY TESTIMONY ON THE DISPUTED ISSUES.............................................................................................................................. 2
NO EXPERT IS NEEDED TO ESTABLISH THAT THE PROCEDURE COULD
HAVE BEEN STOPPED ................................................................................................ 3
NO EXPERT TESTIMONY IS REQUIRED TO SHOW THAT MS. LINOG
WAS CAPABLE OF REVOKING CONSENT .............................................................. 6
In arguing that Ms. Linog lacked the capacity to make a reasoned decision as
own care, or that she failed to articulate her preferences in an unambiguous manner,
Respondents have brought this case squarely within the South Carolina Informed Consent
Act .................................................................................................................................... 7
B. Respondents' Argument on the Facts Is Misleading......................................................... 8
C. Taking Respondents' Claim as True, the Decision Must Be in Appellant's Favor ............ 10
V. OTHER ISSUES.......................................................................................................... 10
A. The so-called “Threshold Issue” ................................................................................... 11
B. Appellant’s “combativeness” is a question for the jury .................................................... 11
C. Selective Quotations ...................................................................................................... 12
D. Ms. Linog is not an expert on anything ........................................................................... 14
SECTION SUMMARY ................................................................................................... 15
TABLE OF AUTHORITIES
South Carolina Cases
Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct. App. 1984) .............................. 1, 2
Stallings v. Ratliff, 292 S.C. 349, 356 S.E.2d 414 (Ct. App. 1987) ............................... 2, 3
Other State Cases
Coulter v. Thomas, 33 S.W.3d 522 (KY, 2000) ................................................................ 3
Mims v. Boland, 138 S.E.2d 902, (Ga. 1964) ............................................................ 2, 3, 6
Schreiber v. Physicians Ins. Co. Of Wisconsin, 588 N.W.2d 26, 31 (WI 1999) ............ 1, 4
South Carolina Statutes
The South Carolina Adult Health Care Consent Act, S.C. Code Ann.,
§44-60-10 et seq. (Supp. 2005) .......................................................................................... 7
South Carolina Rules of Court
South Carolina Rules of Appellate Procedure, Rule 220 (c).............................................. 6
I. SOUTH CAROLINA HAS NEVER RULED OUT REVOCATION OF CONSENT TO TOUCHING AS GROUNDS FOR BATTERY.
The first part of the lower Court's holding was that a cause of action for medical battery based on revocation of consent is a novel issue in South Carolina. In her Initial Brief, Appellant cited cases from several jurisdictions for the obvious point that medical battery based on revocation of consent is a valid cause of action. Appellant further quoted a case stating "There is little doubt" of that. Appellant's Initial Brief, at 13 (quoting Schreiber v. Physicians Ins. Co. Of Wisconsin, 588 N.W.2d 26, 31 (WI 1999)). Appellant further noted that every State that she is aware has considered the issue has so held. She implicitly invited Respondents to present any cases stating the reverse.
Respondents present three cases they claim hold the reverse: All are from South Carolina. They rely especially on Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct. App. 1984), quoting the case twice: "''Thus, the battery theory is applicable either where the physician performs a procedure to which the patient has not consented or where the patient gives permission to perform one type of procedure and the physician performs another.'" Respondents' Brief, at 8 (quoting Hook, supra, 316 S.E.2d at 700); id., at 12 (identical). They argue this language rules out revocation of consent as grounds for medical battery. They ignore the difference between "applicable only where" and "applicable where," between "applicable either where" and "only applicable either where." For example, a principal writes, "A student may receive a failing grade either when he quotes from a publication without attribution, or when he has someone else write the assignment for him." Such a rule would not preclude a student failing because he fails to turn in the assignment, or turns in work that does not rise to passing quality. "One may reach first base either by hitting a ball that lands in the outfield, or by beating out a grounder in the infield." This does not rule out reaching first base by a base on balls, or a dropped third strike, or an error. It simply states the most common ways of reaching first base.
The question of revocation of consent was neither before the Court in Hook nor addressed by it. Nor in the other cases Respondents cite.
Respondent's inaccurate and tortured reading of Hook would make South Carolina the only State on record to say one cannot revoke consent.
It is unfortunate that Respondents did not take the lesson stated elsewhere in Hook, 281 S.C. at 548, 316 S.E.2d at 695, noting that no case in South Carolina had at that time expressly adopted the doctrine of informed consent, but that the doctor there "proper[ly]" refrained from contending the doctrine would not be recognized here. In declining to make such contentions, the doctor there enabled the Court to focus on the real issues.
II. RESPONDENTS MISLEAD IN CLAIMING THAT ONLY FOREIGN JURISDICTIONS ACCEPT LAY TESTIMONY ON THE ISSUE OF CONSENT.
The Order at issue here is based on two grounds: (A) That revocation of consent is a novel issue (discussed above); and (B) That Appellant failed to provide expert testimony (specifically, that the Georgia case (Mims v. Boland, 138 S.E.2d 902, (Ga. 1964)) requires an expert, and Appellant presented no expert).
Appellant was at pains in her Initial Brief to examine the areas where an expert has been required, in Mims and elsewhere, and to show why they do not apply here. (For example, that Appellant does not assert Respondents failed to warn of a harm that often occurs in a properly performed procedure.) Appellant distinguished that issue from the question of whether consent was given or revoked, citing Stallings v. Ratliff, 292 S.C. 349, 356 S.E.2d 414 (Ct. App. 1987)) (expert testimony is not required to show whether a patient had agreed to a given risk). Nevertheless, Respondents claim "It is true that some courts, all of which are in foreign jurisdictions, have held that no expert testimony is required in a medical battery context to determine whether consent was initially obtained." Respondents' Brief, at 9 (emphasis supplied). Their statement is misleading. Apparently Respondents overlooked Appellant's Initial Brief citing and quoting Stallings. A fuller quotation from Stallings is:
if [Dr.] Ratliff's testimony was correct there had been no breach of duty, while if [patient] Stallings was correct there had been a breach of duty. No expert testimony was necessary to aid the jury in drawing these inferences. The critical issue was not a question involving medical knowledge and judgment, but simply a question of who was telling the truth about whether Ratliff disclosed the risk. In other words, a classic jury issue was presented.
Stallings, 292 S.C. at 354, 356 S.E.2d at 41. In short, when the question is what was said, whether words were spoken that deal with consent, South Carolina law is the same as the law of "foreign jurisdictions": lay jurors are as qualified to make that determination as are Nobel laureates in medicine.
III. NO EXPERT IS NEEDED TO ESTABLISH THAT THE PROCEDURE COULD HAVE BEEN STOPPED.
Respondents harp that Appellant cited a Georgia case, Mims (Mims v. Boland, 138 S.E.2d 902, (Ga. App. 1964)), and Mims requires an expert. But Appellant also cited Coulter v. Thomas, 33 S.W.3d 522 (KY, 2000). She cited Coulter both throughout her Initial Brief, and had previously cited Coulter at the Hearing on the Motion to Reconsider [R. pp. 54-55]. She cited both Mims and Coulter to show that courts have held what she thought was obvious, and that a court has said is obvious, Schreiber v. Physicians Ins. Co. Of Wisconsin, 588 N.W.2d 26, 31 (WI 1999): one may revoke consent to a medical procedure.
Mims required an expert for one point and one point only: to show the procedure could have been stopped without serious harm to the patient. And on that point, Coulter says no expert is required.
Besides, on this specific point, Coulter is more on-point. In Coulter, the planned procedure was halted by the medical staff before its contemplated completion, without injury from the cessation, and the court held there was no need to have an expert come testify that the procedure could have been stopped without injury when the injury was in fact stopped without injury. So too here. If either authority is to control, it is the more on-point authority.
Respondents write that the purpose of osseous surgery is to "remove infection, infected tissue, infected bone, calcium debris, plaque debris, irregular bony contours, and irregular root structures." Respondents' Brief at 2. That is true. It is equally true that the practice of criminal law involves death penalty appeals, strong-arm robbery charges, burglary charges, and speeding tickets. But one could not claim the same procedural protections on a speeding ticket charge that one receives for a death penalty case. Ms. Linog was having her gums scraped to remove tartar. A jury can certainly use its common sense to conclude that having one's gums scraped is not a "medical emergency" or that the dentist could have stopped.
Respondents concede that it was not medically necessary to initiate the procedure. ("Q: [It] was an elective procedure, was it not? A: She could have chosen not to do it, yes. Q: Okay. It wasn't life saving? A: No. . . . . A: Emergent in the sense of acute emergency, no." [R. p. 123, lines 4-12. See also R. p. 215, lines 17-18 (what they were doing was "scraping tartar from her gums.")]. But Respondents, through their attorneys, now argue that once initiated, the scraping of gums could not be stopped. However, as noted in Appellant's Initial Brief, the testimony is that Ms. Linog began to protest as soon as the dentist began to work. Certainly he could have stopped at the beginning.
Even were this Court to conclude scraping gums something that as a matter of law cannot safely be stopped once started, or that as a matter of law a lay jury cannot be trusted without expert guidance to understand whether gum scraping can be stopped once it has been started, there can be no rational debate that he could have ceased at the beginning.
At any rate, the South Carolina legislature has spoken. They have stated what must be done by a health care practitioner who claims that there is an emergency requiring treatment. Respondents nowhere even attempt to claim that they complied with the Statute. Respondents may not like the Statute. But whether Respondents, or, with respect, even this Court, feels the Statute is wise is not the issue. The Legislature of South Carolina, not the Court of Appeals of Georgia, makes the rules that apply in South Carolina.
IV. NO EXPERT TESTIMONY IS REQUIRED TO SHOW THAT MS. LINOG WAS CAPABLE OF REVOKING CONSENT.
Respondents next argue that Ms. Linog must show she had the capacity to make a reasoned decision concerning her health care, and communicated that decision in an unambiguous manner. They cite Mims' language on the matter: that the statements must be "from a clear and rational mind;" that the statements must be unambiguous ("such as to leave no room for doubt.") Respondents' Brief, at 16 (citing Mims). However, Mims did not require an expert on this issue. Thus, since the Order stated that it was based on Mims' expert requirement, Respondents could only justify this claim under Rule 220(c), SCACR (the "right for the wrong" reasons Rule), and Respondents nowhere invoke that Rule, which the Court is not bound to apply. Generally, it is within the Court's discretion whether to invoke that Rule.
Respondents similarly wish to argue the merits. They argue that even if an expert is not required to show she had the capacity to say "no," the evidence is she did not have such capacity. Again, since the Order is based on Mims' requirement for an expert, such a contention could only be considered where the Court to apply Rule 220(c). Were the Court inclined to consider their arguments under the non-invoked Rule 220(c), Appellant would argue as follows:
A. In arguing that Ms. Linog lacked the capacity to make a reasoned decision as to her own care, or that she failed to articulate her preferences in an unambiguous manner, Respondents have brought this case squarely within the South Carolina Informed Consent Act.
That Act provides, in its initial section, S.C. Code Ann. § 44-66-20. Definitions, (emphasis supplied):
(6) 'Unable to consent' means unable to appreciate the nature and implications of the patient's condition and proposed health care, to make a reasoned decision concerning the proposed health care, or to communicate that decision in an unambiguous manner.
Respondents' factual argument that Ms. Linog lacked the capability to make such a decision, if accepted, brings this squarely within the statute. (Their related argument that it is to be presumed she lacked such capacity, unless she presents an expert to state the reverse, also brings this case within that Rule. Respondents may not avoid a Statute declaring what the procedure is when someone is unable to consent by declaring, "We simply want a conclusion she was unable to make a reasoned decision, but we do not accept the statutory results of such a conclusion.") In determining what to do when the patient is unable to make a reasoned decision, or to communicate it unambiguously, the South Carolina statute trumps the out-of-state case.
The same Statute provides, in the same paragraph,
A patient's inability to consent must be certified by two licensed physicians, each of whom has examined the patient.
Respondents' argument is that Appellant was unable to make a reasoned decision as to her own care. Were the Court inclined to reach that argument under Rule 220(c), which Respondents did not invoke, the Court should defer to the Legislature. The Legislature has afforded what it considers ample protection to health care professionals, while defending the integrity of patients: Those who wish to disregard a patient's statements on grounds the patient cannot make her own decisions must put that in writing, and then let her spouse decide.
The same Statute provides, in the same paragraph:
However, in an emergency the patient's inability to consent may be certified by a health care professional responsible for the care of the patient if the health care professional states in writing in the patient's record that the delay occasioned by obtaining certification from two licensed physicians would be detrimental to the patient's health.
Thus, even were the Court to conclude that having one's gums scraped is, as a matter of law, an emergency, the Court should defer to the Legislature, which has stated the proper procedure for such "emergencies." Thus, the requirement from the Georgia case, Mims, that an expert testify whether continuing the procedure was an "emergency" that could not be halted without serious detriment to the patient is irrelevant. It would be applicable, if ever, only after the doctors had at least complied with the clear directive of the Statute. It is the Legislature of South Carolina that sets the rules for this State.
Again, Appellant cited Mims only for the obvious proposition that one may revoke consent, and did not intend to import, and could not have imported, any Mims requirement contrary to South Carolina statute.
B. Respondents' Argument on the Facts Is Misleading.
Respondents claim that evidence is that the drugs they gave Appellant made Appellant "legally drunk." They write, regarding the drugs Respondent Bradham gave Appellant, "One of the effects of these medications is that the patient is considered 'legally drunk.'" [Respondents' Brief, at 2-3 (quoting R. p. 245 (no line number provided))]. Again, they write, Respondents' Brief at 9 (quoting R. p. 245, lines 1-4), "On the contrary, the evidence shows that based on the combination of anesthetic agents used, Linog would have been considered 'legally drunk' for 24 hours following the procedure."
This is misleading. What Respondent Bradham actually said is (in addition to testifying that the chief drug is typically metabolized within nine minutes, and that Appellant was metabolizing the drugs faster),
Because all of these drugs are quickly metabolized and allow for quick return to alertness and allow the patient to be discharged within a reasonable time, typically an hour.
So the idea behind using this combination of drugs is for their quick metabolism, quick return to what we call street fitness. Now, I do send the patient home instructing them that they are considered legally drunk 24 hours post-op.
R. p. 244, line 19 - p. 245, line 3. But the difference is well-established in law between a witness stating "X is true," and stating "I tell people X;" between stating under oath, "I tell my waiters my name is Bill Gates," and stating under oath "My name is Bill Gates." It is commonplace for transcripts to go along the lines, "Q: What did you do then? A: I told them Billy was on fire. Q: And was Billy in fact on fire?" Because to be admitted for the fact of the matter stated, the statement must not be "This is what I heard" or "This is what I said" but "This is what actually happened."
Common sense tells one that Dr. Bradham urges patients to be extra cautious, more cautious than they need to be, because Dr. Bradham gets no benefit from their acting normally, and no detriment from their holing up. She misleads them, for what she believes is their good.
As a matter of law, there is no competent evidence that Appellant was legally drunk.
C. Taking Respondents' Claim as True, the Decision Must Be in Appellant's Favor.
Suppose Ms. Linog was in fact "legally drunk." Suppose rather than provide the drugs in fact provided, Dr. Bradham gave Appellant shots of Tequila. Here, all would agree, Appellant was legally drunk. And Dr. Yampolsky walks into the room, and Appellant says, "Stop. I do not want to do this." She would have been entitled to have her wishes respected.
As even Respondent's expert testified, one may revoke consent after being given anesthesia. [Supp. R. p. 2, lines 14-18]. Perhaps one may not legally consent after having anesthesia--had Dr. Bradham gotten Appellant drunk, and then she consented, perhaps the consent might not be legally valid. But a woman is entitled to revoke her consent to have her body touched even when legally drunk.
Respondents once again hang on their own petard: legal drunkenness does not prevent one from revoking consent to have her body touched.
V. OTHER ISSUES
Respondents raise other factual issues, not encompassed in the lower Court's order, and thus similarly reachable only were this Court to do so under Rule 220(c).
A. The so-called "Threshold Issue."
For example, Respondents cite Respondent Yampolsky's testimony that he was unable to state how long Ms. Linog had been demonstrating "combativeness" before he ceased the procedure. [Respondents' Brief at 17]. Respondents argue that because of this testimony, Appellant cannot meet what Respondents call a "threshold matter" of establishing when she first withdrew her consent. Obviously, this is not within the lower court's Order, and could only be reached were the Court of Appeals to decide to invoke Rule 220(C). But even were the Court willing to do so, Appellant quoted testimony in her Initial Brief showing when the withdrawal was made. As Respondent Bradham stated: "Q: . . . . [W]hen in the course of this three and a half hour time line did you first determine it would be a difficult sedation? A: When Dr. Yampolsky started she began talking. . . " [Id. at 10, (quoting R. p. 260, line 25 - p. 261, line 1) (emphasis supplied)]; "She talked, which makes impossible to stay in her mouth. Q: What did she say? A: Go away. Let me out of here. Q: Stop? A: Stop. Yeah." [R. p. 265. lines 13-18]
At best for Respondents, at worst for Appellant, this creates a jury issue: which Respondent to believe? At worst for Respondents, at best for Appellant, a decision as a matter of law should be made: when one witness testifies that she knows when X occurred, and the other states he cannot say when, the only evidence is that it happened when the one with memory says it happened.
B. Appellant's "combativeness" is a question for the jury.
Respondents further quote Respondent Bradham as testifying that Appellant was not combative. Respondents' Brief, at 14 (quoting R. p. 269, lines 2-3) ("'Q: Would you describe her as being combative? A: No.'"). However, Appellant had earlier quoted Respondent Yampolsky that Appellant was combative. [Appellant's Brief, at 10 (quoting R. p. 173, lines 11-18 ("'the combativeness'"); id. at 19 ("combative during the entire procedure") (quoting R. p. 155, line 2)].
While this might be a fine debate Respondents are having with each other, it is the province of the jury to determine who is telling the truth. The jury may believe one Respondent in his entirety, may reject his testimony in whole, may accept part and reject other parts.
This suffices for a jury question.
C. Selective Quotations.
The theme of Respondents is that Appellant quotes selectively. There is a strong element here of the Devils' Food Cake calling the Apple Pie black. See Respondents' Brief, at 13 (claiming Appellant provides a "piecemeal presentation" of her testimony); id. at 15 (claiming Appellant is relying "on only selected 'sound bytes'" of one Respondent's testimony); R. p. 45, line 14 (Respondent arguing that Appellant provides "just a sound bite"); R. p. 4 (claiming that Respondent relies "only on selected 'sound bytes.'")
As noted above, Respondents repeatedly quote in a highly selective manner.
Moreover, in the precise areas in Respondents' Brief that allege Appellant's quotations are misleading, Respondents are misleading. For example, Appellant noted that Respondent Bradham had testified that Appellant was saying "Stop," and words to that effect. Appellant's Brief, at 9. In the next sentence, Appellant noted that Respondent Bradham had testified that what Appellant said was "'sometimes gibberish,'" thus noting that not all that Appellant said was clear. Id. Respondents accuse Appellant of "piecemeal presentation," Respondents' Brief at 13, and, in the very next sentence, claim that Dr. Bradham said Appellant's statements were "'gibberish,'" leaving out the qualifier of the immediately preceding word, "sometimes." What Dr. Bradham said was that Appellant's statements were "sometimes gibberish," leaving the implication as a matter of law, or at least as jury issue, that they were sometimes not gibberish. But Respondents selectively quote, leaving out the qualifier "sometimes," and do so in the same breath they accuse Appellant of selectively quoting--where Appellant had noted that Dr. Bradham's statement was qualified by stating it was "sometimes gibberish."
Moreover, a reasonable inference from Dr. Bradham's testimony is that the "sometimes gibberish" statements were not the "Stop." "Let me out of here" statements that Dr. Bradham had previously referred to, but to other statements Appellant made. At best for Respondents, it is a jury question as to whether the "sometimes gibberish" limitation applies to the "Stop. Let me out of here." And even were the jury to find that it does, and that sometimes, the "Stop" was gibberish, it is at best for Respondents a jury question as to whether the times that the "Stop" was not gibberish meant "Stop."
Further, it is difficult to conceive of how "Stop" could be gibberish.
At worst, if both parties are selectively quoting, that is what juries are for. To determine who is telling the truth, and what inferences to make from each statement that is deemed truthful. Appellant maintains her quotations are proper. Seen in a light most favorable to the non-moving party on the summary judgment motion, Dr. Bradham's "sometimes gibberish" comment did not even apply to Appellant's "Stop. Let me out." But even assuming, contrary to law, that the inference must be favorable to the movant, that Dr. Bradham's statement about "sometimes gibberish" did apply to Appellant's "Stop. Let me out," it was misleading to characterize them as "gibberish" and not admit it was only "sometimes" gibberish.
Were the Court to intrude on the jury's province, and find that the "sometimes gibberish" qualifier applies to Appellant's "Stop. Let me out of here," the Court must still conclude that sometimes these statements were not gibberish, and find in favor of Appellant. Appellant would be satisfied even were the Court to take out of the jury's hand the question of whether the "sometimes gibberish" qualifier applies to the "Stop. Let me out," and allow the jury to determine whether the non-gibberish "Stop. Let me out" meant "Stop. Let me out."
D. Ms. Linog is not an expert.
Ms. Linog is a high school graduate, a semester at Trident Tech, working as a waitress at the time of the event in question. The gist of Ms. Linog's claim is that experts refused to listen to her. The response of these experts is to hire a second set of experts - legal experts -- to argue that Ms. Linog cannot even bring her claim unless she hires a third set of experts. This second set of experts, Respondents' lawyers, are now asking a fourth set of experts -- this Court -- to hold that she cannot bring her claim of experts wrongfully overriding her wishes unless she hires the third set of experts. And all she wants is to bring her claim to a jury representing a cross-section of the community: it might be some people with post-doctoral education, some with college degrees, a high school graduate or two. This second set of experts is now arguing that Ms. Linog cannot have her claim heard because she has not hired a third set of experts--medical experts. They ask a fourth set of experts--legal experts, and specifically this Court -- to hold that an average citizen cannot bring a claim to a jury of average citizens that her wishes were overridden, unless she pays some other expert to say she was capable of stating her wishes -- thus overriding the Statute written by the Legislature, which speaks for the average citizen, that evidence the patient may bring of her intent is not intended to be limited, and that a health practitioner, seeking to override a patient's stated wishes, must put in writing that the patient cannot be trusted with her own wishes, and then consult the next of kin.
The lower Court's Order is based on two grounds: first, that whether one may revoke consent to a health care operation is a novel question in South Carolina, a question that every court that has considered has decided in the affirmative. Second, that the Georgia case, Mims, requires an expert, and Appellant provided no expert. Mims required an expert only on the question of whether the procedure could have been stopped. Later jurisdictions considering revocation of consent have properly refused to require an expert to so testify where the procedure was in fact stopped. Here, it was stopped, so Mims' requirement of an expert to testify it could have been stopped is not applicable. Moreover, whether having one's gums scraped is a "medical emergency" is eminently within the sound common sense of a jury. No expert need tell them that in theory one could stop having her gums scraped without serious physical harm.
Further, Appellant claims the "procedure" that was agreed upon was a cleaning of all her gums, and that the "procedure" was in fact stopped. Respondents claim that each quarter of Appellant's mouth suffices for a "procedure" and thus in finishing one-quarter of her mouth, the dentist completed, rather than stopped, the "procedure." The Court need not determine what the legal meaning of "a procedure" is, because, assuming for the sake of argument that Respondents' definition is correct, Appellant has produced testimony that she withdrew her consent at the initiation of the "procedure"-- as Respondents define the term. Respondents had done nothing to her at that point that required Respondents to continue their invasion.
Nor can it be maintained a medical emergency necessitated initiation of the "procedure," under either definition, for Respondent dentist is on record that Ms. Linog's tartar was not an emergency.
Further, Ms. Linog is not asking for summary judgment. She simply seeks the chance to present her evidence in her day in court. Any limitation on her right do so should come from the Legislature.
Finally, the legislature of South Carolina has the right and the power to determine what the procedure is for medical emergencies that arguably justify overriding a person's wishes. They have not stated that a medical emergency is to be conclusively presumed unless the patient hires an expert to state the contrary. Rather, they have stated that no such claim of emergency is to be even considered unless and until the medical worker complies with serious procedural guidelines.
Respondents' other claims could only be considered were the Court, in its discretion, to apply Rule 220(c), which Respondents do not even ask the Court to apply. Were the Court to consider Respondents' claim that Appellant was unable to appreciate the nature and implications of her condition and proposed care, unable to make a reasoned decision concerning that care, the Court would be obliged to follow the Statute that speaks to that situation, and hold that Respondents committed medical battery. (The Court may wish to reserve that issue until if and when a lower court Order explicitly based thereon comes before this Court, or until if and when a party making such a claim explicitly requests consideration under 220(c)). On these facts and these pleadings, the only answer is to look to the Statute.
The lower Court had it right the first time and found there was a jury issue. On reconsideration, the lower court felt bound not to consider the evidence because a Georgia case required an expert. South Carolina case law does not require an expert to testify that one can stop at the beginning without doing harm. Nor does South Carolina case law require an expert to testify that scraping gums is a medical emergency. Nor does South Carolina statutory law allow one, except with imminent danger of death or death-like injury, to even raise the defense of emergency without complying with serious procedural safeguards, and there is no evidence those safeguards were met here, or even attempted to be met. The Legislature has put the initial evidentiary burden on Respondents. The Court might later entertain questions of whether it should create, out of whole cloth, an evidentiary burden on Plaintiffs, were the issue raised by Defendants whom had complied with the Statute. Respondents whom have not complied with the Statute's requirements to establish what they claim, cannot ask this Court to prevent the aggrieved from going forward unless the aggrieved meets demands the Legislature never required.
The case should be REVERSED and REMANDED, with instructions to the Trial Judge that his instincts were right: there is a jury question.
|November ________, 2006
R. Fudenberg, SC Bar #72019
H. Waggoner, SC Bar #5766
 It is also interesting that, while insisting Appellant is bound by every part of Mims, even those parts that do not apply to her facts, Respondents wish to pick and choose from the South Carolina Informed Consent Act. They quote, and underline, language from S.C. Code § 44-66-60, paragraph (B). Significantly, and in addition to the fact that Respondents preface and follow the quoted language with an interpretation that tortures the meaning of that paragraph, they want to claim benefit from the language they quote, while disclaiming the next paragraph (C): "(C) This section does not limit the evidence on which a court may base a determination of a patient's intent in a judicial proceeding." They also want the benefits of their partial quotation from 44-66-60 (B) while ignoring the thrust of the statute of a whole: That if a patient is incompetent, one must put that in writing, have another professional put that in writing, and then contact the patient's spouse for instructions. If the parties are bound by every aspect of any authority they cite, Appellant must prevail: the South Carolina statute trumps the out of state case, and since Respondents did not take the steps the Statute mandates to avoid a medical battery claim, they are liable.
 See Schrieber:
Regardless of whether she factually withdrew her consent, the circuit court concluded that once a procedure has been initiated the time for a decision and discussions relating to that decision has passed. We reject the notion that the onset of a procedure categorically forecloses a patient's withdrawal of consent. To be sure, at some point in virtually every medical procedure a patient reaches a point from which there is no return. However, that point need not be arbitrarily created at the commencement of treatment. Rather it varies with the nature and circumstances of the individual procedure and continues so long as there exist alternative viable modes of medical treatment.
588 N.W.2d at 31. Thus, even were this Court to reject Schrieber's teaching and hold that one must protest at the initiation of the treatment, Appellant meets that stringent test.
 Mims stated "with regard to the second condition [the medical feasibility of stopping] it can only be proved by medical evidence." [cited in Respondents’ Initial Brief, at 16]
 Further, what is "legally drunk," just as with other questions of law, or engineering, or physics, is an expert question. And there is no evidence that anesthesiologist Bradham had been qualified as a legal expert. Moreover, unlike other questions requiring expertise, questions of law cannot be testified to: they are in the exclusive domain of the Court; the trial judge is the only authority in his/her courtroom on matters of law.
 Were additional evidence required, Appellant would point to the testimony of the dental assistant, Michelle Olaes, that Appellant was moving her arms in front of the dentist and Ms. Olaes to prevent them from operating on her [R. p. 296, line 21 - p. 297, line 9], as well as the evidence in Appellant's Initial Brief, that she was combative throughout the procedure, trying to get out the chair, the most combative of any of the thousands of patients dentist Yampolsky has seen, so combative that anesthesiologist Bradham swore off further dental sedations, etc.
 Similarly for Respondents' argument, Respondents' Brief at 13-15, that Linog relies "only on selected 'sound bytes' from Dr. Bradham's testimony." Respondents spend two pages slaying this dragon, and justify it, id. at 13, by stating that at the original hearing on Respondents' Motion for Summary Judgment (not the Hearing on Respondent's Motion to Reconsider), that was all Appellant orally brought to the lower court's attention. But of course, at a Hearing, one is limited in time, and cannot and should not mention every deposition quotation contained in one's pleadings. [Nor is anyone challenging the result of that initial Hearing]. If Appellant directed attention only to certain deposition excerpts at the initial Hearing, Appellant had cited others in her pleadings. Respondents argue, even now, on appeal, from their Motion to Reconsider, as if the only evidence Appellant has cited is what was offered orally on the initial Motion--Respondents' Brief, at 13-15--as if what was in Appellant's pleadings leading to the initial Motion does not exist, apparently ignoring the evidence Appellant presented at the Hearing on the Motion to Reconsider and in Appellant's Initial Brief before this Court.