Garrick v. Khoury

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

Thelma R. Garrick, Appellant,

v.

Dr. George H. Khoury and Bon Secours St. Francis West
Ashley, Respondents.

Appellate Case No. 2018-001842

Appeal From Charleston County
Diane Schafer Goodstein, Circuit Court Judge

Unpublished Opinion No. 2021-UP-166
Submitted March 1, 2021 – Filed May 12, 2021

AFFIRMED

Thelma R. Garrick, of Orangeburg, pro se.

Joseph John Tierney, Jr., of Rogers Townsend LLC, of
Charleston; and Stephen Lynwood Brown and Russell
Grainger Hines, both of Clement Rivers, LLP, of
Charleston, all for Respondents.

PER CURIAM: Thelma R. Garrick, pro se, appeals the circuit court's order
dismissing her medical malpractice action against Dr. George H. Khoury and Bon
Secours Roper St. Francis West Ashley (collectively, Respondents). We affirm
pursuant to Rule 220(b) of the South Carolina Appellate Court Rules.

The circuit court did not err in dismissing Garrick's complaint alleging medical
malpractice against Respondents because Garrick failed to file a notice of intent to
file suit and an affidavit of an expert witness as required under sections
15-17-125(A) and 15-36-100(B)-(C)(1) of the South Carolina Code (2005 & Supp.
2020). 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 [c]ourt 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."); S.C. Code Ann. § 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.
§ 15-36-100(B) ("[I]n an action for damages alleging professional negligence
against a professional licensed by or registered with the State of South Carolina
and listed in subsection (G) or against any licensed health care facility alleged to
be liable based upon the action or inaction of a health care professional licensed by
the State of South Carolina and listed in subsection (G), the plaintiff must file as
part of the complaint an affidavit of an expert witness which 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."); S.C.
Code Ann. § 15-36-100(G)(7) (2005) ("This section applies to the following
professions: . . . medical doctors; . . ."); S.C. Code Ann. § 15-36-100(C)(1) ("If an
affidavit is not filed within the period specified in this subsection or as extended by
the [circuit] court and the defendant against whom an affidavit should have been
filed alleges, by motion to dismiss filed contemporaneously with its initial
responsive pleading that the plaintiff has failed to file the requisite affidavit, the
complaint is subject to dismissal for failure to state a claim. . . .").

As to Garrick's arguments that she had a valid reason to request a continuance and
she is entitled to a judgment on the merits, we find these issue are not preserved for
appellate review because the circuit court did not rule on Garrick's continuance
motion or the merits of her medical malpractice action. See Wilder Corp. v. Wilke,
330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot
be raised for the first time on appeal, but must have been raised to and ruled upon
by the [circuit court] to be preserved for appellate review.").

AFFIRMED.1

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.