In The Court of Appeals

Danny R. Prince, Respondent,


Beaufort Memorial Hospital and its Employees, Servants and Agents, Appellants.

Appeal From Beaufort County
 Alexander S. Macaulay, Circuit Court Judge

Unpublished Opinion No. 2008-UP-139
Heard January 8, 2008 – Filed March 3, 2008


Mary Bass Lohr, of Beaufort, for Appellant.

T. Wayne Yarbrough, of Bluffton, for Respondent.

PER CURIAM:  In this personal injury action, Beaufort Memorial Hospital (Hospital) appeals the grant of a new trial to Danny R. Prince on the ground that its Quality Assurance Committee file should have been made available to Prince during the prior trial.  We reverse and remand.


On February 13, 1999, Hospital admitted Prince into a fourth-floor room for treatment of job-related injuries.  Initially, Prince was a compliant patient and exhibited no signs of psychotic behavior.  Sometime after 10:30 p.m. on February 17, 1999, however, Prince apparently experienced a psychotic hallucination in his hospital room and was found by Hospital staff at 11:20 p.m. on the roof of a lower floor with injuries to his ankles and head.  Although Prince did not remember anything from the incident, the window in his room appeared to have been forced open. 

On February 15, 2001, Prince brought a negligence action against Hospital and Hospital’s servants and agents.  At issue in the case was how and why Prince ended up on the roof and whether or not the defendants could or should have prevented the incident.

During discovery, Prince sought to obtain a copy of a file generated by Hospital’s Quality Assurance Committee pursuant to the Committee’s investigation of the incident.  Instead, however, Hospital provided a summary of expected witness testimony and refused to give Prince the file, claiming it was protected under South Carolina Code sections 40-71-10 and 40-71-20.[1]  Consequently, Prince filed a motion to compel discovery of the complete Quality Assurance Committee file.  The trial court denied the motion, and a jury ultimately returned a verdict in Hospital’s favor. 

Following the denial of his motions for judgment notwithstanding the verdict and a new trial, Prince appealed to this Court, contending the trial court erred in finding the contents of the file were not subject to discovery.  In an unpublished opinion, this Court held that, although Hospital’s Quality Assurance Committee was within the purview of section 40-71-10 to the extent the Committee operated pursuant to bylaws approved by Hospital and the information acquired by the Committee was protected under section 40-71-20, “the nature of the case demands an in camera review of the file.”  Prince v. Beaufort Mem’l Hosp., Op. No. 05-UP-602 (Ct. App. 2006) (S.C. Ct. App. filed April 11, 2006).  Accordingly, this Court reversed the denial of Prince’s motion for a new trial and remanded the case to the trial court for an in camera review of the file, with the following instructions:

[T]he circuit court shall conduct an in camera review of the committee file.  Using its discretion, the court shall decide whether the file warrants confidentiality.  If the circuit court determines that the file contains relevant evidence which is not protected by the confidentiality statute, then it shall declare a new trial.  Alternatively, if the circuit court determines that there is no relevant evidence in the committee file or that the file is not entitled to protections of the confidentiality statute, then the original denial of the new trial and JNOV motion would be affirmed.

After the required in camera review of the Quality Assurance Committee file, the trial court found Hospital had waived the protections of section 40-71-20 and declared a new trial.  The trial court based this finding on its observation that Hospital “used certain witness statement summaries from this committee file in order to answer Interrogatories propounded by the Plaintiff.”  Using the law on waiver of the attorney-client privilege as a guide, the trial court further held that, once the privilege is waived, “it is clear that it is waived as to all communications on the same subject matter.” 

Hospital moved for reconsideration, arguing among other things Prince did not raise the issue of waiver in his initial appeal and the trial court lacked authority to raise the issue sua sponte on remand.  The trial court declined to amend its prior order.  As to Hospital’s argument that Prince failed to preserve the issue of waiver in his appeal, the trial court held Prince “raised the issue of waiver specifically several times, and, more importantly, . . . the issue of waiver is so intertwined with the issue of confidentiality of the file that it was inherently preserved for review.”  This appeal followed.


“The decision whether to grant a new trial is left to the sound discretion of the trial court and generally will not be disturbed on appeal.”  Dropkin v. Beach Villa Condominium Ass’n, 373 S.C. 360, 363, 644 S.E.2d 808, 809 (Ct. App. 2007) (citing Rush v. Blanchard, 310 S.C. 375, 380, 426 S.E.2d 802, 805 (1993)).  “An abuse of discretion occurs when the trial court’s findings are wholly unsupported by the evidence or the conclusions reached are controlled by an error of law.”  Wright v. Craft, 372 S.C. 1, 36, 640 S.E.2d 486, 505 (Ct. App. 2006).


1.  Hospital first argues that Prince, in his initial appeal to this court, failed to challenge the rejection of his argument at trial that Hospital had waived its right to assert the Quality Assurance Committee file was confidential under section 40-71-20 and is therefore barred by the law of the case doctrine from a finding on remand that Hospital waived its right to assert that the Quality Assurance Committee file was confidential.  We agree.

As a general rule, an unchallenged ruling, right or wrong, is the law of the case.  Ex parte Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 654 (2006).  “Any unappealed portion of the trial court’s judgment is law of the case and must be affirmed.”  Rumpf v. Massachusetts Mut. Life Ins. Co., 357 S.C. 386, 398, 593 S.E.2d 183, 189 (Ct. App. 2004); see also ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997) (emphasizing that unappealed rulings become law of case and should not be reconsidered by this court).

As noted by the trial court on remand and acknowledged by counsel for both sides during oral argument for the present appeal, Prince raised the issue of waiver to the trial court when he sought to obtain the Quality Assurance Committee file.  After the trial, Prince appealed to this Court, raising the following five issues:

(1)  Did the [trial] court err in granting the Hospital Section 40-71-10 & 20 privileges of confidentiality regarding the incident reports without requiring proof that the Section applies? (2) Did the [trial] court err in denying the [Prince] his statement made the night of the incident?  (3)  Did the court erred [sic] when it found that the [Hospital] was a “peer” appearing before itself and being reviewed by itself, thereby qualifying for the privilege of confidentiality.  (4)  Did the [trial] court err in not reviewing the Hospital’s “alleged” confidential file [i]n [c]amera to resolve conflicts in evidence resulting from discovery responses summarized by the Respondent from the alleged confidential file and witness testimony?  (5)  Did the trial court err in not granting the Prince’s JNOV?

We do not read any of these issues to include an argument on the issue of waiver.  In addition, we have reviewed the brief Prince filed in the prior appeal of this case, which was included in the record compiled for the present appeal, and have found nothing that addresses the issue of waiver.  We therefore hold Prince failed to appeal the trial court’s refusal to consider his argument that Hospital had waived its protection under section 40-71-20.  See Rule 207(b)(1)(B) (“Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal.”).

In making this determination, we further hold the trial court erred in stating the issue of waiver was “so intertwined with the issue of confidentiality of the file that it was inherently preserved for review.”  “Waiver is defined as an intentional relinquishment of a known right.”  Lawrimore v. American Health & Life Ins. Co., 276 S.C. 112, 114, 276 S.E.2d 296, 297 (1981) (emphasis added).  It follows that one seeking to establish a waiver of confidentiality inherently recognizes the confidential nature of the information being sought.[2] 

2.  We further agree with Hospital that the trial court, in finding Hospital had waived the right to invoke section 40-17-20, had exceeded the scope of authority granted by this Court in its prior opinion.

Once this Court issues a mandate to a trial court, the trial court “is vested with jurisdiction only to the extent conferred by the appellate court’s opinion and mandate.”  S.C. Dep’t of Soc. Servs. v. Basnight,  346 S.C. 241, 250-251, 551 S.E.2d 274, 279 (Ct. App. 2001) (quoting 5 Am. Jur. 2d Appellate Review § 784, at 43 (1995)).  “It is the duty of the trial court to follow the decision of the appellate court.”  Ackerman v. McMillan, 324 S.C. 440, 443, 477 S.E.2d 267, 268 (Ct. App. 1996).  Thus, it is error for a trial court to consider an issue that was not included in the remand instructions.  Id.

Following a remand, the trial court acquires jurisdiction to enforce the judgment and take any action consistent with this Court’s ruling.  Id.  “Matters decided by the appellate court cannot be reheard, reconsidered, or relitigated in the trial court, even under the guise of a different form.”  Id. 

In the present case, this Court previously concluded Hospital’s Quality Assurance Committee was within the purview of section 40-71-10 to the extent the committee operated pursuant to bylaws approved by Hospital.  Nevertheless, the trial court was specifically instructed to examine the Quality Assurance Committee file to determine if it “warrants confidentiality” and if there was “any evidence not protected by the confidentiality statute.”  When conducting the in camera review, however, the trial court went beyond the remand instructions to find that Hospital “waived its privilege to claim the confidentiality of the Quality Assurance [F[ile.”

We recognize that this Court in its prior opinion stated that “[i]n camera reviews should be used liberally to guard against even a mere possibility a miscarriage of justice will occur,” and directed the trial court to use its discretion when reviewing the file.  Nevertheless, for the reasons we stated in the preceding section of this opinion, we hold the remand instructions did not authorize the trial court to consider whether Hospital had waived its right to assert the file was confidential.  The possibility that such a privilege may have been waived does not affect a determination of whether or not the evidence in the file was protected under section 40-71-20 in the first place. 

3.  In reviewing the appealed order in this case, we note the trial court, in addition to finding Hospital had waived the protections of section 40-71-20, concluded “the committee file does contain relevant evidence that is not protected by the confidentiality statute.”  The order, however, does not describe the evidence or explain why it is not protected by section 40-71-20.  Accordingly, we remand the matter to the trial court to set forth the specific portions of the Quality Assurance Committee file that are subject to discovery as well as the reasons these portions are not confidential under section 40-71-20.

4.  Based on our disposition of this appeal, we do not address Hospital’s remaining argument concerning whether its disclosure of certain information under Rule 33, SCRCP, in fact constituted a waiver of the protection of section 40-17-20.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).


We hold the trial court, in reviewing the Quality Assurance Committee file pursuant to this Court’s prior opinion, exceeded its authority in finding Hospital had waived its right to invoke the protections of South Carolina Code section 40-71-20.  The issue of waiver was neither raised in the prior appeal nor mentioned by this Court when it decided the matter.  Nevertheless, because the trial court on remand found “the committee file does contain relevant evidence that is not protected by the confidentiality statute,” we again remand the matter to the trial court to set forth the evidence in the file that is subject to discovery and to explain why, consistent with the language in this Court’s prior opinion, this evidence “is not protected by the confidentiality statute.”



[1]  South Carolina Code section 40-71-10 exempts members of certain professional committees from tort liability.  S.C. Code Ann. § 40-71-10 (2001 and Supp. 2007).  Under section 40-71-20, “[a]ll proceedings of and all data and information acquired by the committee referred to in Section 40-71-10 in the exercise of its duties are confidential unless a respondent in the proceeding requests in writing that they be made public.”  Id. § 40-71-20(A).  Section 40-71-20 further provides in pertinent part that “[t]hese proceedings and documents are not subject to discovery, subpoena, or introduction into evidence in any civil action except upon appeal from the committee action.”  Id.  The statute further provides, however, that “[i]nformation, documents, or records which are otherwise available from original sources are not immune from discovery or use in a civil action merely because they were presented during the committee proceedings . . . .”  Id.

[2]  We further reject Prince’s allegation that the judge who had presided at the trial of the matter had “ ‘intertwined’ the waiver issue with confidentiality by denying [Prince’s motion to compel], holding he had all ready [sic] ruled on the issue of confidentiality.”  We have reviewed those portions of the transcript cited in Prince’s brief to support this assertion and were unable to discern how the judge’s rulings could be interpreted to equate a ruling on the issue of confidentiality with a ruling on waiver.