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Johnson v. Roberts

Court of Appeals of South Carolina

February 7, 2018

Clair Craver Johnson, Appellant,
v.
John Roberts, M.D., Respondent. And Clair Craver Johnson, Appellant,
v.
Medical University of South Carolina, Respondent. Appellate Case No. 2015-001463

          Heard September 20, 2017

         Appeal From Charleston County R. Markley Dennis, Jr., Circuit Court Judge

          Jonathan Blake Asbill, of Baker Ravenel & Bender, LLP and Bradley Lewis Lanford, of The Law Office of Kenneth E. Berger, LLC, both of Columbia for Appellant.

          Donald Jay Davis, Jr., Stephen Lynwood Brown, James Edward Scott, IV, and Russell Grainger Hines, all of Young Clement Rivers of Charleston for Respondent John Roberts, M.D.

          William Peele Early, of Pierce, Herns, Sloan & Wilson, LLC, of Charleston, for Respondent Medical University of South Carolina.

          LOCKEMY, C.J.

         In this action Clair Craver Johnson appeals the circuit court's entry of summary judgment in favor of John Roberts, M.D. and the Medical University of South Carolina (MUSC) (collectively Respondents). Johnson asserts the circuit court erred in finding her claims were time barred by the statute of repose applicable to medical malpractice claims. We reverse.

         Johnson suffers from bi-polar disorder and depression. In 1997 she experienced severe mania, which required hospitalization. Dr. Roberts, a licensed psychiatrist, began treating Johnson at that time.

         Johnson experienced several episodes of mania between 1997 until November 2003. On November 26, 2003, Johnson's doctors admitted her to MUSC, and on December 10, 2003, they began treating her with electroconvulsive therapy (ECT).[1] Between December 10, 2003 and June 26, 2008, Johnson's doctors treated her with ECT on eighty-six separate occasions. According to Johnson, she sustained serious permanent cognitive damage as a result of the ECT.

         Johnson, proceeding pro se, filed a Notice of Intent to File Suit against MUSC on June 25, 2010. She alleged "due to having ECT . . . for an extended period of time between 2003 and 2008 [I] am now left with cognitive impairment and memory loss." Johnson also requested an extension to file an expert affidavit because "I am informed and have a good faith belief that the statute of limitation on my cause of action in this matter (absent a discovery exception) will expire within the next 10 days from the date my Notice of Intent to File Suit is filed." On August 20, 2010, Johnson filed a Stipulation of Dismissal without Prejudice of her Notice of Intent to Sue.

         On November 16, 2011, Johnson filed a complaint against MUSC, asserting medical malpractice claims resulting from her ECT treatments. Johnson claimed, "[d]uring, after and a direct and proximate result of this extensive and involuntary ECT treatment, [she] lacked the mental capacity to understand and appreciate the detrimental effect the ECT had upon her until 2010 . . . ." Johnson also filed an affidavit from Harold J. Burstztajn, M.D., corroborating her claims that she was incapacitated as a result of the ECT until 2010. On May 16, 2012, Johnson filed an Amended Complaint against Dr. Roberts for damages resulting from the ECT treatments.

         Following discovery, Respondents filed motions for summary judgment alleging Johnson's claims were barred by the statute of limitations and the statute of repose. Dr. Roberts contended the first act of negligence would have occurred between 2002 and 2003, meaning the statute of repose would bar any claims filed after 2009. MUSC also asserted, "Plaintiff's complaint against MUSC having arisen out of ECT treatment initiated in 2003 is time barred."

         The circuit court held a hearing on Respondents' motions and later issued its order granting Respondents' summary judgment, finding Johnson's claims were time-barred by the statute of repose. Johnson filed a motion for reconsideration ...


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