In any state, bringing a successful medical malpractice case is a challenge, especially when compared with other types of civil cases. This is due in part to the medical and legal issues inherent to these kinds of cases, and to the fact that a medical malpractice lawsuit often involves in-depth testimony of numerous medical experts, plus the introduction of extensive treatment records.
But it's also because in most states, including South Carolina, the plaintiff (that's the person bringing the lawsuit) must comply with certain procedural rules right at the outset (in South Carolina, that means even before filing the complaint, which is the document that officially starts the lawsuit). These safeguards have been put in place as part of tort reform efforts, which seek to dissuade the filing of frivolous injury-related lawsuits. But if you think you have a valid medical malpractice case in South Carolina, here's what you need to know about the procedural landscape.
The Notice of Intent to File and Affidavit of Expert Witness
As a prerequisite to the filing of any medical malpractice lawsuit in South Carolina, the injured patient (and his or her attorney) must first file with the court—and serve on all health care providers who might be subject to the lawsuit—a "Notice of Intent to File Suit" and an affidavit of an expert witness.
According to South Carolina Code section 15-79-125, the "Notice of Intent to File Suit" must:
- name all health care providers who could be sued
- contain a "short and plain statement of the facts" showing how and why the injured patient is entitled to relief
- be signed by the plaintiff or by his attorney, and
- include any answers to interrogatories or similar disclosures required by the South Carolina Rules of Civil Procedure.
And under South Carolina Code section 15-36-100, a prospective medical malpractice plaintiff must also file an "affidavit of an expert witness," which must specify at least one negligent act (or failure to act) on the part of a defendant health care provider, and the factual basis for each claim based on the available evidence. (Learn more about the kinds of medical errors that often lead to a successful medical malpractice case.)
The "Notice of Intent to File Suit" and the expert affidavit must be filed with the court and served on all potential defendants. These filings in effect pause the statute of limitations "clock," meaning that the time limit for getting the medical malpractice lawsuit filed won't be able to run against the injured patient.
After these documents are filed and served, the plaintiff can request medical records and other documents relevant to proving the medical malpractice case (including by subpoena), the health care provider can do the same, and both parties can ask the court for permission to schedule and take depositions.
Mediation
Within 90 days—and no later than 120 days—after the Notice of Intent to File Suit and the expert affidavit are served, the parties are required to participate in a mediation conference and make an effort to resolve the dispute before a medical malpractice lawsuit needs to be filed. If one or more parties can show "good cause," the court will put off this mandatory mediation for no more than 60 days.
More Procedural Rules for South Carolina Medical Malpractice Cases
Besides the prerequisites we've discussed here, medical malpractice plaintiffs need to understand and comply with the lawsuit filing deadline set by the South Carolina medical malpractice statute of limitations. And of course, if you're looking for legal advice that's tailored to your specific situation, it might be time to talk with an experienced South Carolina medical malpractice lawyer.