Angela Patton, as Next Friend of Alexia L., a minor, Petitioner,
Gregory A. Miller, M.D., Rock Hill Gynecological & Obstetrical Associates, P.A. and Amisub of South Carolina, d/b/a Piedmont Medical Center, Respondents. Appellate Case No. 2015-002135
December 14, 2016
OF CERTIORARI TO THE COURT OF APPEALS
from York County S. Jackson Kimball III, Special Circuit
Layton Ruffin, Edward L. Graham, and Diane M. Rodriguez, of
Graham Law Firm, PA, all of Florence, for Petitioner.
W. Davis, of Davis, Snyder, Williford & Lehn, P.A., of
Greenville; R. Hawthorne Barrett and Thomas C. Salane, both
of Turner Padget Graham & Laney, PA, of Columbia; William
U. Gunn and Joshua Tate Thompson, both of Holcombe Bomar, PA,
of Columbia, all for Respondents.
question posed in this appeal is whether a minor may bring an
action for her own medical expenses. The answer depends on
whether she is the "real party in interest, " and
any dispute over the answer is governed by Rule 17(a) of the
South Carolina Rules of Civil Procedure.
Facts and Procedural History
L. was born on April 5, 2007, at Piedmont Medical Center in
Rock Hill. Gregory A. Miller, M.D., was the obstetrician who
delivered her. Alexia's mother-Angela Patton-filed a
medical malpractice lawsuit in November 2009 against Dr.
Miller and the professional association where he practiced,
Rock Hill Gynecological & Obstetrical Associates, P.A.
Patton filed the lawsuit only in her capacity as Alexia's
"next friend." She sought damages from Dr. Miller and
Rock Hill Obstetrical for Alexia's injuries and past and
future medical expenses.
March 2012, Patton filed a separate medical malpractice
lawsuit against Amisub of South Carolina, which owns and does
business as Piedmont Medical Center. She also filed the
Amisub lawsuit only in her capacity as Alexia's next
friend, and sought the same damages she sought in the first
lawsuit. In July 2012, the parties consented to consolidate
the two cases, and Patton-again acting only as Alexia's
next friend-filed an amended complaint naming Dr. Miller,
Rock Hill Obstetrical, and Amisub as defendants. In the
amended complaint, as in the first two, Patton did not make
any claim in her individual capacity. The only claims she
made were Alexia's claims, which she made in her
representative capacity as Alexia's next friend.
theory of liability was that the defendants-primarily Dr.
Miller- "improperly managed the resolution of shoulder
dystocia . . . and that such mismanagement caused
permanent injury to Alexia's left-sided brachial
plexusnerves." Patton sought damages for
Alexia's pain and suffering, disability, loss of earning
capacity, and other harm she contends resulted from this
injury. Patton also sought damages for Alexia's medical
fact that Patton brought the claim for medical expenses only
in her representative capacity as Alexia's next
friend-and not in Patton's own capacity- is at the center
of this appeal. Dr. Miller, Rock Hill Obstetrical, and Amisub
moved for partial summary judgment on the basis of this fact.
They argued the circuit court should dismiss the claim for
medical expenses because only a parent-not the child-has the
right to recover damages for a minors' medical expenses.
The defendants argued, in other words, Patton could recover
for Alexia's medical expenses if she sued in her own
capacity, but she may not recover them in her capacity as
Alexia's representative. The circuit court agreed and
granted partial summary judgment to all three defendants. The
court found "the minor plaintiff may not maintain a
cause of action for [her medical] expenses in her own
filed two motions in response to the circuit court's
order. First, she filed a motion to alter or amend the
summary judgment pursuant to Rule 59(e) of the South Carolina
Rules of Civil Procedure. She also filed a motion to amend
her complaint pursuant to Rule 15 to "change [her]
capacity . . . from Next Friend to her individual
capacity." She asked that the amendment relate back to
the date of her original complaint, as provided for in Rule
15(c). The circuit court denied both motions.
appealed to the court of appeals, which affirmed in an
unpublished opinion. Patton v. Miller, Op. No.
2015-UP-367 (S.C. Ct. App. filed July 22, 2015). We granted
Patton's petition for a writ of certiorari to review the
court of appeals' decision. We reverse that portion of
the circuit court's order that awards partial summary
judgment to Dr. Miller and Rock Hill Obstetrical, affirm the
award of partial summary judgment to Amisub, and remand to
the circuit court.
Rule 17, SCRCP-The Proper Plaintiff
claiming that only a parent-not the child-may bring a claim
for the child's medical expenses, the defendants invoked
the "real party in interest" requirement of Rule
17(a) of the South Carolina Rules of Civil Procedure, which
provides, "Every action shall be prosecuted in the name
of the real party in interest." A real party in interest
is "the party who, by the substantive law, has the right
sought to be enforced. It is ownership of the right sought to
be enforced which qualifies one as a real party in
interest." Bank of Am., N.A. v. Draper, 405
S.C. 214, 220, 746 S.E.2d 478, 481 (Ct. App. 2013); see
also 6A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure §1541
(3d ed. 2010) (stating Rule 17(a) provides "that the
action should be brought in the name of the party who
possesses the substantive right being asserted under the
applicable law . . . ."); 6 Cyclopedia of Federal
Procedure § 21.7 (3d ed., rev. 2017) ("The
'real party in interest' . . . is defined as the
person holding the substantive right to be enforced, and not
necessarily the person who will ultimately benefit from the
requirement that an action must be brought by the real party
in interest is not a new requirement. Section 134 of our 1867
Code provided, "Every action must be prosecuted in the
name of the real party in interest . . . ." S.C. Code
§ 134 (1867). The "real party in interest"
requirement can be found in all subsequent versions of the
Code including the 1976 Code. S.C. Code Ann. § 15-5-70
(1976) (repealed 1985). As the Reporter's Note to Rule
17(a) indicates, "The first sentence . . . [is]
substantially the same as Code §§ 15-5-70 and
defendants and the circuit court rely primarily on two cases
in which we applied the real party in interest requirement to
a claim for a minor's medical expenses. In Hughey v.
Ausborn, 249 S.C. 470, 154 S.E.2d 839 (1967), we stated
"the amount paid for medical care and treatment by the
parent is not an element of damage" in a cause of action
brought by the minor, but rather "the parent has a cause
of action for the recovery of the medical expenses which he
has incurred for the care and treatment of such minor."
249 S.C. at 475, 154 S.E.2d at 841; see S.C. Code
§ 10-207 (1962) (stating the real party in interest
requirement). In Tucker v. Buffalo Cotton Mills, 76
S.C. 539, 57 S.E. 626 (1907), we stated a "father suing
merely as guardian ad litem for injuries to his infant child
cannot recover for [the child's medical] expenses"
because "the father himself is personally liable"
to pay those expenses. 76 S.C. at 542, 57 S.E. at 627;
see Code of Civil Procedure of South Carolina §
132 (1902) (stating the real party in interest requirement).
See also Hughey, 249 S.C. at 476, 154 S.E.2d at 841
(explaining that the basis of the parent's right to
recover the damages is the parent's obligation to pay the
child's medical expenses); 67A C.J.S. Parent and
Child § 352 (2013) ("The parental right to
recover expenses when a child is injured stems from the
parents' legal obligation to support a child.").
Applying the real party in interest requirement to the facts
of those cases, we recognized that the legal obligation to
pay a medical bill renders the person who holds that
obligation the proper party to bring a claim, or the
"real party in interest." This is the principle of
law relied on by the defendants and the circuit court, and it
is the same principle embodied in the definition of real
party in interest set forth in Draper.
determine, therefore, whether Patton-in her capacity as
Alexia's next friend and not in her own capacity-meets
the real party in interest requirement on her claim for
Alexia's medical expenses. In particular, we must
determine whether Patton's representative claim for
Alexia's medical expenses is consistent with our
application of the real party in interest requirement to
similar claims in Hughey and Tucker. We
begin our analysis with Patton's description in her
briefs to the court of appeals and this Court of the medical
expenses she sought to recover:
Following her injuries, Alexia has received necessary and
proper treatment from a host of healthcare providers,
including a nerve resection surgery. Alexia will need
additional surgeries and other treatment continuing until her
eighteenth birthday, as well as continued treatment after she
reaches the age of majority. Accordingly, she will incur
future medical bills during her entire lifetime.
medical expenses fall into three categories. First, Patton
seeks to recover for medical expenses that will have been
incurred at the time of trial. These include the cost of the
nerve resection surgery that has already been performed.
Second, Patton seeks to recover for expenses that will be
incurred in the future, but before Alexia turns eighteen.
Third, Patton seeks to recover for expenses Alexia will incur
after she reaches the age of eighteen, which Patton contends
Alexia will incur "during her entire lifetime."
Hughey, Tucker, and Draper to the
third category of medical expenses Patton seeks to
recover-those Alexia will incur after turning eighteen-Alexia
is clearly the real party in interest on a claim for those
expenses. At that time she will be an adult, and the medical
services provider may legally seek payment for the services
from Alexia herself. Because Alexia will be obligated to pay
the bills for those services, she owns the right to recover
them as damages. The circuit court apparently recognized
this, and specifically granted summary judgment only on
"Plaintiff's claims for her own medical or
injury-related expenses incurred to date, and to be incurred
during her minority." Thus, Patton-acting on behalf of
Alexia and not in her individual capacity-is the real party
in interest for future medical expenses Alexia will incur
after she turns eighteen, and properly brought the claim.
to the second category of expenses Patton seeks to
recover-those incurred between the time of trial and
Alexia's eighteenth birthday-Hughey,
Tucker, and Draper require that we
determine who has the legal obligation to pay those expenses,
which in turn informs us who owns the right to recover them
as damages, and thus who meets the real party in interest
requirement. Patton-in her individual capacity-is a real
party in interest. Under South Carolina law, Patton's
parental responsibilities include the legal obligation to pay
her child's medical expenses. S.C. Code Ann. §§
63-5-20 & -30 (2010). Because of that obligation, Patton
owns a substantive right to recover damages for those
expenses. Therefore, Patton-in her individual
capacity-satisfies the Rule 17(a) requirement that the claim
be brought by the real party in interest. Draper,
405 S.C. at 220, 746 S.E.2d at 481.
question before us, however, is whether the circuit court
correctly concluded that Patton-in her representative
capacity-is not the real party in interest. As the following
discussion demonstrates, the analysis of whether a
representative qualifies as the real party in interest for
future medical expenses is not as simple as the analysis for
past medical expenses was in 1907 in Tucker and in
1967 in Hughey. In fact, none of the cases relied on
by the defendants or the circuit court involved claims for
future medical expenses. Cf. Sox v. United States,
187 F.Supp. 465, 469-70 (E.D.S.C. 1960) (permitting a minor
to recover her own future, pre-majority, medical expenses).
Patton recovers Alexia's future medical expenses, for any
recovery above a minimal amount, the funds paid by these
defendants must be paid to a conservator, or some other adult
fiduciary representative. See S.C. Code Ann. §
62-5-433(B)(3) (2009) (requiring payment of settlement funds
to a conservator); S.C. Code Ann. § 62-5-401 (Supp.
2016) (permitting the appointment of a conservator for a
"minor [who] owns money or property that requires
management or protection"). The "conservator [must]
act as a fiduciary, " and thus the funds must remain in
the custody of the conservator until they are used for
Alexia's benefit, or until she turns eighteen. S.C. Code
Ann. § 62-5-417 (2009). For medical expenses actually
incurred while Alexia is a minor, the conservator has a legal
obligation to pay them. S.C. Code Ann. § 62-5-428(a)(1)
Patton is now or later becomes Alexia's conservator, then
her fiduciary obligation to pay Alexia's medical expenses
will make her the real party in interest-in her
representative capacity. However, whether a particular
plaintiff is a real party in interest must be determined at
the time of filing, and the identity of the conservator is
often not known until the time a recovery is made. It is
clear, however, that Alexia's representative-or
conservator-will have a legal obligation to pay future
medical expenses before Alexia's eighteenth birthday.
Under Hughey, Tucker, and Draper,
therefore, the conservator's legal obligation to pay the
expenses renders the representative who brought the action a
real party in interest.
to the first category of medical expenses-those already
incurred at the time of trial-Patton is a real party in
interest in her individual capacity because of her obligation
to pay them. §§ 63-5-20 & -30. The circuit
court correctly concluded, therefore, that Patton may sue in
her individual capacity to recover medical expenses that have
already been paid for the care and treatment of Alexia.
circuit court's partial summary judgment order, however,
was not based on that conclusion. Rather, the order was based
on the circuit court's categorical determination that
Patton may not sue for those expenses in any representative
capacity. The circuit court stated, "Neither of her
parents have sued individually to recover [Alexia's
medical] expenses, and the minor plaintiff may not maintain a
cause of action for [her medical] expenses in her own
right." To determine whether the circuit court's
statement was correct, and thus whether it correctly granted
partial summary judgment based on it, Hughey,
Tucker, and Draper require that we analyze
whether Patton-in her representative capacity-has a legal
obligation to pay the medical bills.
did with the second category of expenses, we question whether
this analysis may be conducted in 2017 with the simplicity
with which we analyzed it in Tucker and
Hughey. To illustrate this point, we turn to
Patton's representation to the circuit court that
"Alexia is covered by Medicaid, which has paid vast sums
on her behalf for medical care." To the extent
Alexia's medical bills were paid by Medicaid, they were
not paid by either of her parents. In both Tucker
and Hughey, the injured child's father paid the
medical bills.Tucker, 76 S.C. at 542, 57 S.E.
at 627; Hughey, 249 S.C. at 475, 154 S.E.2d at 841.
The collateral source rule preserves the parent's right
to recover the damages, even though the parent did not pay
the medical expenses. However, federal and state law provides
Medicaid an automatic right of subrogation. See
generally 42 U.S.C. § 1395y(b)(2) (2012 & Supp.
II 2014); 42 C.F.R. § 411.24(e) & (g) (2016); S.C.
Code Ann. § 43-7-430 (2015) (collectively defining
federal subrogation rights to third-party recovery of medical
expenses paid by Medicaid, and the Medicaid recipient's
legal obligation to repay). A similar right of subrogation
often exists pursuant to the insurance contract when the
medical expenses are paid by a private insurer. See
S.C. Code Ann. § 38-71-190 (2015) ("Any policy or
contract of accident and health insurance issued in this
State may include provision for subrogation by the insurer to
the insured's right of recovery against a liable third
party . . . ."). Therefore, a child's representative
who seeks damages for a child's medical expenses that
were paid by Medicaid or some other insurer is almost
certainly under a legal duty to reimburse the actual payor