United States District Court, D. South Carolina, Florence Division
LINDA B. NICHOLS, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ADOPTING THE REPORT AND RECOMMENDATION, GRANTING
DEFENDANT'S SECOND MOTION TO DISMISS, DISMISSING THIS
ACTION WITHOUT PREJUDICE, DEEMING AN MOOT PLAINTIFF'S
MOTION FOR A SUBPOENA, AND GRANTING PLAINTIFF'S MOTION TO
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
Linda Nichols (Nichols), a self-represented litigant, filed
this action against Defendant United States of America
(Defendant) alleging dental malpractice, lack of informed
consent (consent), dental battery, and negligence.
Nichols's lawsuit arises from an April 3, 2017, dental
appointment she had with Dr. Alena Sabzwari, who was employed
by the Little River Dental Center, an entity receiving
Court earlier granted Defendant's motion to dismiss all
of the causes of action, except the consent claim. The Court
has jurisdiction over the lawsuit under the Federal Tort
Claims Act, 28 U.S.C. §§ 1314(b) and 2671.
matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge
suggesting Defendant's second motion to dismiss
Nichols's consent claim be granted, this matter be
dismissed without prejudice, and Nichol's pending motion
for a subpoena be deemed moot. The Report was made in
accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on August 14, 2019, and on
August 21, 2019, Nichols filed a motion to withdraw.
Defendant filed a response to Nichols's motion on
September 4, 2019, and Nichols filed a reply to
Defendant's response on September 16, 2019.
Nichols's motion to withdraw, she seeks to withdraw a
medical battery claim she raised in her response to
Defendant's second motion to dismiss. Because “no
independent cause of action for medical battery exists in
South Carolina[, ] Linog v. Yampolsky, 656 S.E.2d
355, 358 (S.C. 2008), the Court will grant this motion.
submission, Nichols also makes arguments as to why her lack
of informed consent and negligence claims should go forward.
Inasmuch as the Magistrate Judge discussed these issues in
the Report, the Court will liberally construe these
contentions as objections to the Report.
Court notes it appears Nichols is referring to her consent
and negligence claims as the same cause of action. To the
extent she is discussing her original negligence claim,
however, the Court notes it has already been dismissed. And,
if she is seeking to amend her complaint to add another
negligence claim, the Court would deny the request as futile.
considering Nichols's objections, some background is
necessary. As the Court observed above, the Court earlier
granted Defendant's first motion to dismiss all of the
Nichols's claims, except her consent claim. In allowing
the consent cause of action to proceed, the Court stated
Nichols argued her consent claim falls within the
“common knowledge” exception to the
expert-affidavit requirement of S.C. Code Section 15-26-100.
Defendant's first motion to dismiss failed to directly
address that legal argument, stating instead a document it
had attached to the motion established Nichols had given her
informed consent. Thereafter, Defendant filed this second
motion to dismiss.
only question before the Court is whether the Nichol's
consent claim falls under the exception to the general rule a
medical malpractice plaintiff must file an expert affidavit
along with the complaint in medical malpractice matters.
See S.C. Code Ann. § 15-36-100(B). The
exception to the general rule states “[t]he
contemporaneous filing requirement . . . is not required to
support a pleaded specification of negligence involving
subject matter that lies within the ambit of common knowledge
and experience, so that no special learning is needed to
evaluate the conduct of the defendant.” S.C. Code Ann.
recommending to the Court it grant Defendant's second
motion to dismiss, the Magistrate Judge stated that, although
Nichols “attempts to place her consent claim into the
realm of the “common knowledge exception[, ]” . .
. [her] allegations . . . require expert testimony to
establish the requisite standard of care.” Report at
12. The Court agrees.
now to Nichols's objections, she fails to make any
specific objections to the Report. Instead, she states her
“claim of lack-of-informed consent and negligence lies
within the ambit of common knowledge.” Objections at 1.
“An expert testimony is not required when the subject
matter of the allegedly substandard conduct is within the