December 1, 2016
OF CERTIORARI TO THE COURT OF APPEALS
From Charleston County The Honorable Kristi Lea Harrington,
Circuit Court Judge
C. Salane and R. Hawthorne Barrett, both of Turner Padget
Graham & Laney, PA, of Columbia, for Petitioner.
Lane Cartee, of North Charleston, for Respondents.
case requires us to decide whether an expert witness
affidavit submitted prior to the commencement of a medical
malpractice action complied with section 15-36-100(A) of the
South Carolina Code (Supp. 2016). The trial court found the
affidavit insufficient based on the expert's practice
area and dismissed the Notice of Intent to File Suit (NOI).
We reverse, finding the statute permits the production of an
affidavit from an expert who does not practice in the same
area of medicine as the allegedly negligent doctor.
medical malpractice action arose after Johnny Eades sought
treatment from numerous healthcare providers, including
Petitioners Palmetto Primary Care Physicians, LLC and Trident
Emergency Physicians, LLC, for a blockage and aneurysm of the
left iliac artery in July and August of 2009. Three years
later, Mr. Eades and his wife filed an NOI to bring the
medical malpractice action in Charleston County. Two days
after filing the NOI, the Eades filed answers to
interrogatories listing Dr. Paul A. Skudder as an expert
witness, along with an affidavit from Skudder pursuant to
section 15-79-125 of the South Carolina Code (Supp. 2016).
defendants, including Petitioners, filed motions to dismiss
the Eades' NOI. Following a hearing, the trial court
granted the defendants' motions on two grounds, holding:
(1) section 15-79-125 requires medical malpractice plaintiffs
to file expert affidavits in compliance with section
15-36-100 contemporaneously with the NOI; and (2) the
Eades' expert affidavit was defective because it did not
conform to the requirements of section 15-36-100(A).
Specifically, the trial court found the expert affidavit was
insufficient because it did not indicate that Skudder had
"actual professional knowledge and experience" in
the same practice areas as Dr. Campbell and Dr.
Wallen. The order further stated, "Dr.
Skudder's affidavit fails to provide the proper
qualifications, required by section 15-36-100, that would
permit Dr. Skudder to present an expert opinion about Dr.
Campbell and Dr. Wallen."
court of appeals reversed in an unpublished opinion pursuant
to this Court's decision in Ranucci v. Crain,
409 S.C. 493, 763 S.E.2d 189 (2014), which held that section
15-79-125 incorporates the safe harbor provision of
15-36-100(C)(1) and extends the time for filing the expert
witness affidavit in medical malpractice actions where the
statute of limitations is in danger of
expiring. In a footnote, the court of appeals
summarily concluded the question of the sufficiency of the
expert affidavit was not preserved for review and declined to
address the issue. This Court granted certiorari to review
the court of appeals' decision.
court of appeals err in failing to affirm the dismissal as to
Petitioners because the expert affidavit ...