The Supreme Court of South Carolina

RE:  Act No. 385 of 2006 – relating to defining the "practice of medicine."

ORDER

Act No. 385 of 2006 – ratified 6/7/2006 and effective 6/9/2006 –substantially revises Chapter 47 of Title 40 of the South Carolina Code; the chapter dealing with “physicians, surgeons, and osteopaths.”  The Act contains the following language:

'Practice of Medicine' means:

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(h) testifying as a physician in an administrative, civil, or criminal proceeding in this State by expressing an expert medical opinion.

Section 40-47-20(36), Act No. 385, 2006 S.C. Acts __.  Furthermore, the Act provides significant detail regarding the information that the South Carolina Board of Medical Examiners shall require before issuing a “limited license” to a physician licensed in good standing in another state who has been engaged to testify as an expert medical witness in an administrative or judicial proceeding in South Carolina.  Section 40-47-35, Act No. 385, 2006 S.C. Acts __.

Traditionally, court rules allowed any witness who was qualified as an expert by knowledge, skill, experience, training, or education to offer expert testimony in a South Carolina court.  Rule 702, SCRE.  Furthermore, in a lawsuit alleging a cause of action for medical malpractice, the general rule is that expert testimony is required to show that the defendant failed to conform to the required standard of care; specifically, the reasonable and ordinary knowledge, skill, and diligence physicians in similar neighborhoods and surroundings ordinarily use under like circumstances.  Green v. Lilliewood, 272 S.C. 186, 192, 249 S.E.2d 910, 913 (1978) (quoting Jarboe v. Harting, 397 S.W.2d 775, 778 (Ky. 1965)).  Thus, although no South Carolina statute or court rule has ever embraced the higher scrutiny applied as a pre-requisite for the admission of expert testimony enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), our rules have always charged the court with performing a “gate keeping” function in limiting the presentation of expert testimony to situations where the testimony will assist the trier of fact in understanding evidence or determining a fact in issue.[1]

After careful consideration, we believe that while the General Assembly certainly sought, through Act 385, to make needed revisions to the methods South Carolina courts utilize in the area of expert medical testimony, the effect of the revised statutes has the potential to substantially impair the orderly administration of justice.  Specifically, Act 385 casts serious doubt on a physician’s ability to offer testimony regarding the treatment provided to a witness, party litigant, or criminal defendant if the physician, at the time of trial, resides outside of South Carolina.  This categorical exclusion overlooks the fact that the physician may have treated the patient in the physician’s home jurisdiction, and also that the physician, although at one time licensed and providing treatment to the patient in South Carolina, has relocated out of this state.  We believe requiring a treating physician to seek a South Carolina medical license before offering often necessary testimony strains Act 385 far beyond its intended scope.

Additionally, Act 385 is ambiguous as to its relevance to pre-trial practices and proceedings that are of fundamental importance to the judicial process.  For example, Act 385’s applicability to witnesses used during discovery that might not be used at trial is unclear.  Furthermore, although expert testimony is traditionally presented by a witness offering live testimony, lawyers often draw heavily from learned treatises authored by prominent national experts.  It would do a great disservice to our system of justice if the doors of South Carolina courtrooms were closed to these scholarly works and the country’s leading medical scholars, who may have no intentions of ever visiting this jurisdiction, because our state law would deem them unqualified to offer expert testimony by virtue of their refusal to subject themselves to the disciplinary authority of the South Carolina Board of Medical Examiners.[2]

The South Carolina Constitution vests this Court with the authority to make rules governing the administration of the unified South Carolina court system.  S.C. Const. art V, § 4.  In order to prevent a significant impairment to this Court’s duty to properly administer the judicial power of South Carolina, and pursuant to Article V, Section 4’s authority, we hereby temporarily delay judicial enforcement of Act 385 insofar as the Act requires a physician to obtain a license to practice medicine in South Carolina before offering expert medical testimony in a South Carolina administrative or court proceeding.[3]

While we remain respectful of the General Assembly’s voice in matters of practice and procedure in South Carolina’s courts, this Court cannot allow the administration of justice to be substantially impaired.  We are confident, however, that when the General Assembly provides further clarity on this matter, the changes that result will reflect careful consideration and deliberation; will consider and account for the scope of the court’s existing rules and the need for efficient and orderly court administration; and will be subjected to close scrutiny in the Judiciary Committees of both the South Carolina Senate and the House of Representatives.

This order is effective immediately and shall remain in effect until further order of this Court.

Columbia, South Carolina
August 24, 2006

[1] In Daubert, the United States Supreme Court interpreted Rule 702 of the Federal Rules of Evidence to require trial courts to ensure that all testimony offered as expert scientific, technical, or specialized testimony be both relevant and reliable, be grounded in scientific methods and procedures, and be supported by appropriate scientific validation.  509 U.S. at 589-92.  Furthermore, the court interpreted federal evidentiary rules to require “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”  Id. at 592-93.  Although Rule 702, SCRE, contains identical language to the federal rule, we have expressly declined to adopt this interpretation in South Carolina.  See State v. Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999) (declining to adopt Daubert; interpreting the South Carolina Rules of Evidence to require the trial judge to determine that the evidence will assist the trier of fact, that the expert witness is qualified, and that the underlying science is reliable; and adopting the factors set forth in State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979) for determining the reliability of the offered evidence).

[2] We also note that although Title 40 of the Code has always contained civil and criminal penalties for violations of the title’s licensing requirements and for aiding and abetting one who violates those provisions, see S.C. Code Ann. §§ 40-1-210, 40-47-260 (2001), Act 385’s significantly broader definition of the “practice of medicine” and licensing requirements now introduce the possibility of incurring these penalties in connection with conducting a trial in South Carolina. 

Furthermore, the Act defines the “practice of medicine” to include “rendering a written or otherwise documented medical opinion concerning the diagnosis or treatment of a patient or the actual rendering of treatment to a patient within this State by a physician located outside the State as a result of transmission of individual patient data by electronic or other means from within a state to such physician or his or her agent.”  Section 40-47-20(36), Act No. 385, 2006 S.C. Acts __.  In an effort to ensure that unintended consequences do not overwhelm the noble motives of the legislation, these factors further necessitate our issuing this order.

[3] Because we are not presently presented with a case or controversy questioning the constitutionality of Act 385, we reserve those serious questions for another day.  At the present, we rely exclusively on our Constitutional authority to police the orderly administration of justice in the South Carolina courts.