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Fay v. Grand Strand Regional Medical Center, LLC

Court of Appeals of South Carolina

April 1, 2015

Sean D. Fay, as Personal Representative for the Estate of Kelly L. Fay, Deceased, Respondent/Appellant,
v.
Grand Strand Regional Medical Center, LLC, d/b/a South Strand Ambulatory Care Center and Stephen W. Law, D.O., Dr. Richard Young, M.D., and Grand Strand Urology, LLP, Defendants, of Whom Stephen W. Law, D.O. is also an Appellant, And of Whom Dr. Richard Young, M.D., and Grand Strand Urology, LLP, are Respondents

Heard February 11, 2015

Appeal From Horry County. J. Michael Baxley, Circuit Court Judge. Appellate Case No. 2010-167127.

AFFIRMED.

Page 640

[Copyrighted Material Omitted]

Page 641

J. Boone Aiken III, of Aiken Bridges Elliott Tyler & Saleeby, P.A., of Florence, and Andrew F. Lindemann, of Davidson & Lindemann, P.A., of Columbia, for Appellant.

John S. Nichols, of Bluestein Nichols Thompson & Delgado, and Ruskin C. Foster, of Mike Kelly Law Group, LLC, both of Columbia, for Respondent/Appellant.

Marian Williams Scalise and Lydia Lewis Magee, both of Richardson Plowden & Robinson, P.A., of Myrtle Beach, and Carmen Vaughn Ganjehsani, of Richardson Plowden & Robinson, P.A., of Columbia, for Respondents.

KONDUROS, J. SHORT and GEATHERS, JJ., concur.

OPINION

Page 642

[412 S.C. 190] KONDUROS, J.:

In this cross-appeal from a medical malpractice action, Sean Fay (Sean) argues the trial court erred in granting Dr. Richard Young's motion for a directed verdict on public policy grounds. In the appeal against Sean, Dr. Stephen Law argues the trial court erred in (1) denying his motion for a judgment notwithstanding the verdict (JNOV), (2) excluding evidence of Sean's admitted extramarital affair, and (3) refusing to enroll the judgment against him using the jury's determination of six percent negligence on his part and instead using joint and several liability. We affirm.

FACTS/PROCEDURAL HISTORY

At approximately 8:00 a.m., Saturday, January 26, 2002, Kelly Fay (Kelly), accompanied by her husband Sean, presented to Grand Strand Regional Medical Center's (the Hospital[1]) emergency room, complaining of abdominal and right flank pain. Kelly believed it was caused by a kidney stone because she had previously experienced the same pain, which had been a kidney stone. Dr. Stephen Law, the emergency room physician, examined her approximately four minutes after she arrived. She complained of mild nausea but had not vomited, and she denied fevers and chills. Kelly initially described her pain level as being a seven or eight out of ten, and it decreased to a five or six out of ten after receiving pain medication.

Her vital signs and temperature were normal when they were first taken.[2] A physical examination revealed moderate to severe flank tenderness on the right side, but the abdomen was soft, non-tender, and non-distended. Dr. Law suspected a kidney stone and ordered a kidney, ureter, and bladder (KUB) [412 S.C. 191] x-ray, which revealed a moderate-sized kidney stone in the right kidney. A CT scan confirmed this and indicated a half centimeter in diameter kidney stone in the ureter of the right kidney. To rule out infection, Dr. Law also ordered a urinalysis, which showed no blood or bacteria in the urine.

After deciding Kelly was stable to discharge, Dr. Law spoke with Dr. Young, the on-call urologist, on the telephone to make sure he was available to examine Kelly on Monday. However, Dr. Law testified he was not seeking advice or permission from Dr. Young to admit Kelly. Dr. Law spoke with Kelly and Sean, allegedly informing them to

Page 643

immediately return to the emergency department if she experienced uncontrollable pain, nausea, vomiting, fever, or chills.[3] Dr. Law additionally instructed them to call Dr. Young on Monday at 8:30 a.m. to schedule an appointment for that day. The nursing staff then provided written discharge instructions, which Kelly signed, informing the Fays to call or return to the emergency room if she developed a fever, intense pain, or vomiting. Kelly and Sean left the emergency room at approximately 12:00 p.m., and Kelly allegedly looked flushed, a little warm, and red. Notably, her temperature was not taken before she left.

About an hour later, after picking up a prescription, Kelly's temperature was, as testified to by Sean, either 101.3 or 101.6 degrees Fahrenheit. Over the weekend, she continued to experience a fever of 101.3 or 101.6 degrees Fahrenheit, severe chills, nausea, and vomiting. Kelly did not return to the emergency room because she would alternate between feeling better and worse throughout the weekend and believed she could wait until her appointment on Monday with Dr. Young.

After calling Dr. Young to schedule an appointment on Monday, Sean went to work that morning, planning to return to take Kelly to see Dr. Young around 2:00 p.m. After failing to reach her by telephone several times, Sean returned home around 1:30 p.m. to find Kelly unresponsive, gagging, and convulsive. EMS responded and found Kelly on the floor, hot to the touch, with shallow rapid breathing. Upon arrival at [412 S.C. 192] the hospital, Kelly had a fever of 105 degrees. Kelly died Monday evening at the emergency room from clinical sepsis.[4]

Subsequently, Sean brought this wrongful death and survival action for medical malpractice against Dr. Law, the Hospital, and Dr. Young and his practice, Grand Strand Urology. The trial began on May 17, 2010. On May 26, at the close of all of the evidence, the trial court granted Dr. Young's motion for a directed verdict on public policy grounds. The jury returned a $3 million verdict against the Hospital and Dr. Law two days later.[5] On June 7, 2010, Dr. Law and the Hospital filed post-trial motions for JNOV, new trial absolute, and new trial nisi remittitur. The trial court filed its orders denying all post-trial matters on June 24, 2010. Dr. Law filed a motion to reconsider, which the trial court ultimately denied on August 26, 2011. This appeal followed.

LAW/ANALYSIS

As a threshold matter, Dr. Young argues Sean failed to timely serve his notice of appeal, and Sean argues Dr. Law failed to timely serve his notice of appeal. We find both parties' ...


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