September 20, 2017
From Charleston County R. Markley Dennis, Jr., Circuit Court
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.
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
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.
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
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). 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
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.
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.
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."
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