David L. Scheer v. Southern Myrtle Inpatient Services, LLC

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

David L. Scheer, as Personal Representative of the Estate
of Matthew J. Scheer, Respondent,

v.

Southern Myrtle Inpatient Services, LLC, Nirlep A.
Patel, M.D., and Rachel Ash-Bernal M.D., Defendants,

Of which Southern Myrtle Inpatient Services, LLC is the
Appellant.

Appellate Case No. 2019-001665

Appeal From Horry County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2023-UP-002
Heard October 12, 2022 – Filed January 4, 2023

AFFIRMED

Robert L. Widener, of Burr & Forman LLP, of Columbia,
for Appellant.

William R. Padget and Francis M. Hinson, IV, both of
HHP Law Group, of Columbia, for Respondent.
PER CURIAM: This is an appeal by Southern Myrtle Inpatient Services, LLC
(Southern Myrtle). At the time of the events in this lawsuit, Southern Myrtle
employed doctors practicing at Grand Strand Hospital (Grand Strand) in Myrtle
Beach.

Matthew Scheer was a patient at Grand Strand. Within the span of several hours, he
was admitted to the hospital by one physician and then allowed by another to leave
against medical advice. Matthew was admitted to the hospital based on recent
behavior suggesting he was experiencing acute psychosis. He was discharged after
he had an outburst and insisted on leaving in the middle of the night. Sadly, he died
a short time later. Not long after Matthew left the hospital, witnesses saw a man
fitting Matthew's description take off his clothes and run screaming into the ocean.

Matthew's father David Scheer filed this lawsuit in his capacity as personal
representative of Matthew's estate. David sued the two doctors, Southern Myrtle,
and Grand Strand. Grand Strand settled. The claims against the doctors and
Southern Myrtle went to a jury trial.

The allegations against the doctors were for medical malpractice. The claims were
that Matthew's first physician had not conducted a proper "handoff" of Matthew as
a patient, that the second physician erred in allowing Matthew to leave the hospital,
and that the second physician erred in not phoning Matthew's emergency contact
(which was David) before Matthew left.

The claims against Southern Myrtle were for vicarious liability (for any negligence
by its employees) and "direct" liability. The theory on direct liability was that
Southern Myrtle inadequately trained or failed to train the doctors on when they
could involuntarily detain a patient like Matthew and when they could disclose
patient healthcare information under the Health Insurance Portability and
Accountability Act (HIPAA).

All of these claims went to the jury, and the jury returned a plaintiff's verdict.
Southern Myrtle appeals the denial of its motion for judgment notwithstanding the
verdict (JNOV) and its motion for a new trial.

JNOV

Southern Myrtle argues it was entitled to judgment as a matter of law because (1) it
did not owe any duty directly to Matthew and did not have a duty to train the doctors;
(2) there was not expert testimony establishing the existence of any duty or its
breach; and (3) any breach did not proximately cause Matthew's injuries. As this
description implies, all of these arguments are focused on the direct theories of
liability against Southern Myrtle. This no doubt results from the fact that the jury
allocated 100% of the fault to Southern Myrtle, no fault to Matthew, and appeared
to allocate no fault to the doctors.

If that description were the full story of this case, we would have to directly face
Southern Myrtle's arguments. But that is not the full story. The circuit court charged
the jury:

A corporation is responsible for all the actions or inactions
of its agents or employees that are performed within the
course and scope of that agency relationship. Here, it is
undisputed that [the doctors] were employees of Southern
Myrtle Inpatient Services, LLC, at all relevant times. You
should consider any acts or omissions of [the doctors] to
be the acts of Southern Myrtle Inpatient Services, Inc. In
addition, Plaintiff has alleged and Defendant Southern
[Myrtle] has denied that it, Southern Myrtle, failed to
provide education and training to [the doctors] relating to
the applicable standard to detain a mentally ill patient
and . . . permissive disclosure of health information. You
may consider these alleged actions or failures of the
corporat[e] Defendant along with the other allegations.

(emphasis added).

Southern Myrtle's core argument to us rests on the premise that the jury acquitted its
physicians of wrongdoing. We respectfully disagree, for two reasons. First, the jury
charge we recited above appears to accurately state the law of respondeat superior
liability—the principle that an employee's torts are imputed to the employer. West
v. Serv. Life & Health Ins. Co., 220 S.C. 198, 202, 66 S.E.2d 816, 817 (1951). Still,
when read literally, the charge instructs the jury to attribute the doctors' fault to
Southern Myrtle. The jury was not, for example, instructed to allocate Southern
Myrtle's fault on the verdict form based only on Southern Myrtle's purported direct
liability. We do not think the verdict form as completed by the jury leads
indisputably to the conclusion that the jury believed Southern Myrtle's doctors acted
in conformity with the standards of care.
The second reason we disagree with the idea that the jury acquitted Southern
Myrtle's doctors is that there is no doubt the jury returned a plaintiff's verdict.
Indeed, as noted above, the jury found no fault with Matthew. No argument is made
to us that the verdict is internally inconsistent. The absence of that argument may
be attributable to the fact that the remedy for an inconsistent verdict is a new trial,
not JNOV. Stevens v. Allen, 342 S.C. 47, 52-53, 536 S.E.2d 663, 665-66 (2000).
Because it is impossible for us to say whether the verdict is based on vicarious
liability, direct liability, or both, we must sustain the verdict based on the two-issue
rule and the rule that we sustain verdicts if it is possible to do so. See Vinson v.
Jackson, 327 S.C. 290, 293, 491 S.E.2d 249, 250 (1997) ("A jury verdict should be
upheld when it is possible to do so and carry into effect the jury's clear intention."
(quoting Johnson v. Parker, 279 S.C. 132, 135, 303 S.E.2d 95, 97 (1983)));
Anderson v. S.C. Dep't of Highways & Pub. Transp., 322 S.C. 417, 419-20, 472
S.E.2d 253, 254-55 (1996) (explaining the two-issue rule); id. at 420, 472 S.E.2d at
254 ("[W]hen a jury's general verdict is supportable by more than one cause of action
submitted to it, the appellate court will affirm unless the appellant appeals all causes
of action.").

To be fair, the record suggests that even though the parties agreed on the verdict
form, the verdict form became an issue during jury deliberations. The jury asked,
"If we give zero percent fault to any Defendants would they be guilty of
malpractice?" According to the record, the plaintiff took the position that a zero
allocation of fault meant a physician was acquitted of malpractice. We do not agree
with this position. First, there was the charge we have already noted that the jury
should ascribe the doctor's actions to Southern Myrtle. Then, there is the fact that
there could not be employer liability in this sort of situation (whether vicarious or
direct) without an employee first breaching a standard of care and injuring the
plaintiff. Take James v. Kelly Trucking Co., 377 S.C. 628, 661 S.E.2d 329 (2008)—
one of the key cases in South Carolina on an employer's direct liability. That case
would not exist unless one of Kelly Trucking Company's drivers had first (allegedly)
caused a wreck. Id. at 630, 661 S.E.2d at 330. The very idea that an employer like
Southern Myrtle could potentially be liable for failing to train an employee on the
standard of care presupposes that the employee has acted in a way that deviates from
that standard.

For these reasons, we cannot say that this verdict acquitted the physicians and relies
on Southern Myrtle's purported direct liability.

NEW TRIAL
Southern Myrtle argues the case should be retried because the circuit court erred in
admitting evidence on the claim that Southern Myrtle failed to train its physicians
on permissible disclosures of healthcare information under HIPAA. Southern
Myrtle claims a new trial is warranted because David did not plead this claim in his
amended complaint.

This argument is controlled by the same reasoning we have given above. We do not
know whether this verdict rests on the "permitted HIPAA disclosures" theory of
liability or the "failure to detain" theory of liability. And beyond that, we note that
we do not understand why Southern Myrtle would ask for a "new trial" when the
argument is that the claim was never pled and should not have been tried at all.

Even if we were to reach the argument, we would respectfully disagree with it. The
amended complaint alleged (among other things):

The Defendants, individually, and by and through their
agents and servants, deviated from the applicable
standards of care, and were negligent, grossly negligent,
careless and reckless, in the following particulars:

...

c. failing to contact Matthew's father to inform him that
Matthew was desiring/attempting/planning to leave
[Grand Strand];

d. failing to involuntarily commit Matthew and otherwise
allowing Matthew to leave [Grand Strand];

e. failing to educate and otherwise train physicians and
staff as to the ability, means, and mechanisms to detain
a mentally ill patient against his/her will; and

f. in such other and further particulars as discovery or
evidence at trial may reveal.

Our review of the record convinces us that the theories of liability that went to the
jury have been apparent throughout this lawsuit's lifespan. The amended complaint
explicitly advertises that David planned to argue about the failure to contact him, the
failure to involuntarily detain Matthew, and alleged failures in training. This was
sufficient considering the liberal rules on pleadings. See Shirley's Iron Works, Inc.
v. City of Union, 403 S.C. 560, 573, 743 S.E.2d 778, 785 (2013) (explaining courts
should construe pleadings liberally); Patton v. Miller, 420 S.C. 471, 493, 804 S.E.2d
252, 263 (2017) (explaining courts should avoid deciding cases on pleading
technicalities); Rule 9, SCRCP (not including negligence on the list of special
matters that require pleading with specificity instead of a general averment). HIPAA
training was discussed throughout discovery in this case and featured prominently
in multiple depositions. From the very beginning of trial, there did not seem to be
any surprise or lack of preparedness by Southern Myrtle respecting the argument it
failed to train on permitted disclosures. See Shirley's, 403 S.C at 574, 743 S.E.2d at
785 (explaining the purpose of pleadings is to inform the defendant of what it needs
to be prepared to defend against). Southern Myrtle met this theory on the merits. It
cross-examined David's expert on the expert's testimony about HIPAA training and
presented its own expert who reviewed its training curriculum and testified the
training was adequate. We do not see how a new trial on this claim would be any
different from the trial the parties already had, and we do not see an abuse of
discretion by the circuit court in admitting the evidence. See Fields v. Reg'l Med.
Ctr. Orangeburg, 363 S.C. 19, 25-26, 609 S.E.2d 506, 509 (2005) (explaining
appellate courts review evidentiary issues for abuse of discretion).

CONCLUSION

For these reasons, the circuit court's order is

AFFIRMED.

KONDUROS, HEWITT, and VINSON, JJ., concur.