I, Nathan Hughey, have had the opportunity to teach nursing home litigation to other attorneys for over seven years, and my presentations have been approved by the South Carolina Bar as available to count toward those attorneys’ required annual continuing legal education credit hours.  From its implementation in 2005, I have taught “tort reform” to other lawyers and professionals within the State of South Carolina since “tort reform” was enacted in this state.  From the beginning, I researched his area of the law and have not only taught continuing legal education on this subject, but I have practiced law dealing with the impact of “tort reform” on my cases essentially each and every day since it was implemented.  This is intended as a brief overview of tort reform in South Carolina as it applies to nursing home cases.

Nursing Home Cases and Tort Reform

Nursing Home cases in South Carolina have been affected by “tort reform.”  The South Carolina Non-Economic Damage Awards Act of 2005 changed the way that nursing home cases were litigated by South Carolina Nursing Home Wrongful Death Lawyers like Hughey Law Firm.  South Carolina Nursing Home Abuse and Neglect Attorneys at Hughey Law Firm now have to navigate through various procedural rules which mean that the cases take longer from start to finish, are more complicated, more difficult, and more biased towards nursing homes and away from families than before it was enacted.  South Carolina Nursing Home Abuse and Neglect lawsuits are now affected by caps put in place on recovery, and nursing home settlements take longer, in general, to achieve.

Limitations on Recovery

Tort reform in South Carolina as it applies to nursing home claims limits recovery as follows: “In an action on a medical malpractice claim when final judgment is rendered against a single health care institution, the limit of civil liability for non-economic damages is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant.”  This figure is adjusted for inflation using the consumer price index.  There is an argument that a Plaintiff can sue up to three different health care providers, combining so that “the limit of civil liability for non-economic damages for all health care institutions and health care providers is limited to an amount not to exceed one million fifty thousand dollars.”  This is also adjusted for inflation.

Economic damages recoverable in nursing home lawsuits in South Carolina by lawyers such as Nathan Hughey are not affected.  Nursing home residents often have little or no monetary loss as a result of their claims.  Other than medical bills, specials are usually limited to funeral expenses and other miscellaneous items.  These persons are usually not going to have lost economic damages in terms of money aside from the above and loss of retirement income.  South Carolina’s Tort reform defines economic damages as pecuniary damages arising from medical expenses and medical care, rehabilitation services, costs associated with education, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, a claim for loss of spousal services, loss of employment, loss of business or employment opportunities, loss of retirement income, and other monetary losses.  On the other hand, ‘Non-economic damages’ means non-pecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other non-pecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury.  These are the usual nursing home case damages.

Charleston County Judicial Center

Tort reform as it applies to nursing home cases does not in and of itself limit the compensation for punitive damages, but there are various cases which limit punitive damages to a reasonable figure compared to actual damages.  The limitations “do not apply if the jury or court determines that the defendant was grossly negligent, willful, wanton, or reckless, and such conduct was the proximate cause of the claimant’s non-economic damages, or if the defendant has engaged in fraud or misrepresentation related to the claim, or if the defendant altered or destroyed medical records with the purpose of avoiding a claim or liability to the claimant.” As to the medical records alteration, this is a key issue in any nursing home case.

South Carolina’s tort reform act specifically defines a nursing home facility.  ‘Nursing home’ means a licensed facility with an organized nursing staff to maintain and operate organized facilities and services to accommodate two or more unrelated persons over a period exceeding twenty-four hours which is operated either in connection with a hospital or as a freestanding facility for the express or implied purpose of providing skilled nursing services for persons who are not in need of hospital care.

Significantly, this definition does not include assisted living, independent living, or community residential care facilities that do not provide skilled nursing services.   Thus, in South Carolina, there is a very strong argument that tort reform does not apply to assisted living facilities or residential care facilities.

South Carolina’s tort reform act defines skilled nursing services as services that: (a)  are ordered by a physician; (b) require the skills of technical or professional personnel such as registered nurses, licensed practical (vocational) nurses, physical therapists, occupational therapists, and speech pathologists or audiologists; and (c)  are furnished directly by, or under the supervision of such personnel.

Procedural Obstacles

Prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice, the plaintiff now must contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness. The notice must name all adverse parties as defendants, must contain a short and plain statement of the facts showing that the party filing the notice is entitled to relief, must be signed by the plaintiff or by his attorney, and must include any standard interrogatories or similar disclosures required by the South Carolina Rules of Civil Procedure. Filing the Notice of Intent to File Suit tolls all applicable statutes of limitations. The Notice of Intent to File Suit must be served upon all named defendants in accordance with the service rules for a summons and complaint outlined in the South Carolina Rules of Civil Procedure.

The affidavit “must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.”  Expert witnesses are required to meet certain standards to testify.  Under tort reform, an ‘expert witness’ means an expert who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who:

(1)  is licensed by an appropriate regulatory agency to practice his or her profession in the location in which the expert practices or teaches; and  (2) (a) is board certified by a national or international association or academy which administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or (b)  has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in: ( i)    the active practice of the area of specialty of his or her profession for at least three of the last five years immediately preceding the opinion; ( ii)    the teaching of the area of practice or specialty of his or her profession for at least half of his or her professional time as an employed member of the faculty of an educational institution which is accredited in the teaching of his or her profession for at least three of the last five years immediately preceding the opinion; or (iii)    any combination of the active practice or the teaching of his or her profession in a manner which meets the requirements of sub-items (i) and (ii) for at least three of the last five years immediately preceding the opinion; (3)    is an individual not covered by subsections (A)(1) or (2), that has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual’s study, experience, or both. However, an affidavit filed pursuant to subsection (B) by an expert qualified under this subsection must contain an explanation of the expert’s credentials and why the expert is qualified to conduct the review required by subsection (B). The defendant is entitled to challenge the sufficiency of the expert’s credentials pursuant to subsection (E).

Under tort reform, “before a medical malpractice action is brought to trial, the parties shall participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules in effect at the time for the State or any portion of the State. From a practical standpoint, the “pre suit” mediation is usually simply a telephone formality.  This means that the case is delayed by (1) the time it takes to pay an expert to review the file and obtain an affidavit, (2) the time it takes to file and serve the notice of intent, and (3) the time up until the pre-suit mediation.  This means, from a practical perspective, a typical medical malpractice case is procedurally going to take at least 8-10 months longer than a wreck case, or premises liability / slip and fall, or similar case, in order to even get it moving.

There are numerous other provisions of tort reform in South Carolina, which affect cases substantively and procedurally, and the attorneys at Hughey Law Firm can discuss those with you if you desire.  If you have a professional negligence claim, such as a medical malpractice, construction, nursing home, or similar case, Nathan Hughey (me) or anyone at Hughey Law Firm will be happy to discuss it with you.

 Nathan Hughey

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