Mark Rutland v. Jeremy Locklair

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

Mark Rutland, as Power of Attorney for Mary Hoover,
Appellant,

v.

Jeremy Locklair and Orangeburg Post Acute LLC d/b/a
Edisto Post Acute, Respondents.

Appellate Case No. 2022-000088

Appeal From Orangeburg County
G. D. Morgan, Jr., Circuit Court Judge

Unpublished Opinion No. 2024-UP-073
Submitted February 13, 2024 – Filed March 13, 2024

AFFIRMED IN PART AND REVERSED IN PART

Virginia Watson Williams, of Williams & Williams, of
Orangeburg, for Appellant.

Ashley Sumner Heslop, of Hall Booth Smith, PC, of Mt.
Pleasant; and Daniel Richard Fuerst, of Moore & Van
Allen, PLLC, of Charleston, both for Respondents.
PER CURIAM: Mark Rutland, acting as power of attorney for Mary Hoover,
appeals the circuit court's dismissal of his action against Jeremy Locklair and
Orangeburg Post Acute LLC d/b/a Edisto Post Acute (Edisto) pursuant to Rule
12(b)(6) of the South Carolina Rules of Civil Procedure. On appeal, Rutland
argues the circuit court erred in dismissing his action for failing to comply with the
pre-litigation requirements for medical malpractice actions under section
15-79-125 of the South Carolina Code (Supp. 2023). We affirm in part and reverse
in part.

We affirm the circuit court's dismissal of the claims against Edisto to the extent the
complaint raises allegations of medical malpractice because Rutland failed to file
the statutorily mandated notice of intent to file suit and expert affidavit. See
Grimsley v. S.C. Law Enf't Div., 396 S.C. 276, 281, 721 S.E.2d 423, 426 (2012)
("On appeal from the dismissal of a case pursuant to Rule 12(b)(6), an appellate
court applies the same standard of review as the [circuit] court." (quoting Rydde v.
Morris, 381 S.C. 643, 646, 675 S.E.2d 431, 433 (2009))); id. ("That standard
requires the Court to construe the complaint in a light most favorable to the
nonmovant and determine if the facts alleged and the inferences reasonably
deducible from the pleadings would entitle the plaintiff to relief on any theory of
the case." (quoting Rydde, 381 S.C. at 646, 675 S.E.2d at 433)); id. ("If the facts
alleged and inferences deducible therefrom would entitle the plaintiff to any relief,
then dismissal under Rule 12(b)(6) is improper."); § 15-79-125(A) ("Prior to filing
or initiating a civil action alleging injury or death as a result of medical
malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File
Suit and an affidavit of an expert witness . . . ."); S.C. Code Ann. § 15-79-110(6)
(Supp. 2023) ("'Medical malpractice' means doing that which the reasonably
prudent health care provider or health care institution would not do or not doing
that which the reasonably prudent health care provider or health care institution
would do in the same or similar circumstances."); S.C. Code Ann. § 15-79-110(3)
(Supp. 2023) ("'Health care provider' means a physician, surgeon, osteopath, nurse,
oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or any
similar category of licensed health care provider . . . .").
However, we reverse the circuit court's dismissal of the claims against Locklair to
the extent the complaint raises allegations of ordinary negligence. See Dawkins v.
Union Hosp. Dist., 408 S.C. 171, 176, 758 S.E.2d 501, 503-04 (2014) ("[T]he
distinction between medical malpractice and negligence claims is subtle; there is
no rigid analytical line separating the two causes of action." (quoting Estate of
French v. Stratford House, 333 S.W.3d 546, 555 (Tenn. 2011))); id. at 176, 758
S.E.2d at 504 (explaining the distinction between medical malpractice and ordinary
negligence "depends heavily on the facts of each individual case" (quoting Estate
of French, 333 S.W.3d at 556)); id. at 177-78, 758 S.E.2d at 504 (explaining an
action sounds in ordinary negligence if the injury arose from "nonmedical,
administrative, ministerial, or routine care" (quoting Kujawski v. Arbor View
Health Care Ctr., 407 N.W.2d 249, 252 (Wis. 1987))); id. at 177, 758 S.E.2d at
504 (explaining that, conversely, "if the patient receives allegedly negligent
professional medical care, then expert testimony as to the standard of that type of
care is necessary, and the action sounds in medical malpractice"). Our disposition
does not preclude further litigation at the summary judgment stage. 1

AFFIRMED IN PART AND REVERSED IN PART. 2

THOMAS, MCDONALD, and VERDIN, JJ., concur.

1
Rutland also argues the notice of intent to file suit and expert affidavit filed in a
previous action fulfilled this requirement. We find this argument is without merit.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.