Heard March 5, 2014
Appeal From Kershaw County. The Honorable Alison Renee Lee, Circuit Court Judge. Appellate Case No. 2012-213231.
Daryl G. Hawkins, of Law Office of Daryl G. Hawkins, L.L.C., of Columbia, for Appellant.
William H. Davidson, II and Andrew F. Lindemann, both of Davidson & Lindemann, P.A., and William O. Sweeny, III and Benson Hall Driggers, both of Sweeny Wingate & Barrow, P.A., of Columbia, for Respondents.
JUSTICE BEATTY. KITTREDGE, HEARN, JJ., and Acting Justice James E. Moore, concur. PLEICONES, J., dissenting in a separate opinion.
[409 S.C. 517] BEATTY JUSTICE
In this direct appeal, Patricia Brouwer challenges the circuit court's order dismissing her medical malpractice case for failure to file an expert witness affidavit with her Notice of Intent to File Suit (" NOI" ) pursuant to section 15-79-125 of the South Carolina Code. Brouwer contends she is exempt from filing an expert witness affidavit because section 15-36-100(C)(2) does not require an affidavit where the alleged negligent act " lies within the ambit of common knowledge and experience." We agree as this Court recently held that section 15-79-125(A) incorporates section 15-36-100 in its entirety, including the common-knowledge exception codified in 15-36-100(C)(2). Ranucci v. Crain, Op. No. 27422, 409 S.C. 493, 763 S.E.2d 189, (S.C. S.Ct. filed July 23, 2014) (Shearouse Adv. Sh. No. 29 at 49). (" Ranucci II " ). Additionally, we conclude that Brouwer successfully invoked this exception and, thus, was not required to file an expert witness affidavit with her NOI. Accordingly, we reverse the decision of the circuit court and remand the case for further proceedings.
I. Factual / Procedural History
On January 9, 2009, Brouwer was admitted to Sisters of Charity Providence Hospital (" Hospital" ) for a uvulopalatopharyngoplasy, a procedure used to treat sleep apnea. During the surgery, Brouwer suffered an allergic reaction that required her to be treated in the Intensive Care Unit (" ICU" ). [409 S.C. 518] Brouwer attributed the reaction to her latex allergy that was disclosed to medical personnel on Brouwer's forms for " Pre-Anesthesia Evaluation" and " Consent to Operation, Anesthetic and Other Medical Services." Prior to surgery,
the Hospital issued Brouwer a wrist band that identified the latex allergy.
On December 29, 2011, Brouwer filed an NOI and a Summons and Complaint, wherein she asserted a medical malpractice claim against the Hospital, the medical practice, the operating physician, the anesthesiologist, and other unnamed medical personnel. On January 4, 2012, Brouwer filed an Amended NOI to correct a scrivener's error as to a named defendant. Brouwer did not file an expert witness affidavit with her NOI because it was her " good faith belief" that her allergic reaction to latex " lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the Defendants." If the circuit court deemed its submission necessary, Brouwer requested additional time to procure and file an expert witness affidavit.
Respondents moved to dismiss Brouwer's NOI and Complaint pursuant to Rule 12(b)(6), SCRCP. In support of the motion, Respondents alleged Brouwer's failure to file an expert witness affidavit with her NOI violated the mandatory provisions of section 15-79-125. Brouwer opposed the motion, but conceded the ...