Pratt v. Amisub of SC, Inc.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Rita Pratt, Individually and as the Personal
Representative of the Estate of William Pratt, Deceased,
Respondent,

v.

Amisub of SC, Inc. d/b/a Piedmont Medical Center;
Jaleesa Heyward, RN; South Carolina Emergency
Physicians, LLC; Jonas Varaly, DO; Rock Hill
Radiology Associates, LLC; and Geoffrey T. Gilleland,
M.D.; Defendants,

of which Rock Hill Radiology Associates, LLC, and
Geoffrey T. Gilleland, M.D., are the Appellants.

Appellate Case No. 2020-000838

Appeal From York County
Daniel Dewitt Hall, Circuit Court Judge

Opinion No. 6096
Heard March 5, 2024 – Filed January 15, 2025

AFFIRMED

Matthew Holmes Henrikson, of Henrikson Law Firm,
LLC, of Greenville, and Andrew F. Lindemann, of
Lindemann Law Firm, P.A., of Columbia, both for
Appellants.

Chad Alan McGowan, Ashley White Creech, Jordan
Christopher Calloway, and Eve Schafer Goodstein, all of
McGowan Hood Felder & Phillips, of Rock Hill, for
Respondent.

MCDONALD, J.: In this medical malpractice appeal, Rock Hill Radiology
Associates, LLC and Geoffrey T. Gilleland, M.D. (Appellants) argue the circuit
court erred in (1) denying their motions for directed verdict, judgment
notwithstanding the verdict (JNOV), or a new trial absolute; (2) requiring the jury
to allocate fault; (3) failing to reduce the verdict in accordance with the statutory
noneconomic damages cap; and (4) failing to properly allocate setoffs following a
partial settlement. We affirm.

Facts and Procedural History

William "Bill" Pratt had liver cancer; by September 2014, he had been diagnosed
with Stage IV carcinoma with metastasis into the adrenal gland. Pratt also had a
history of Hepatitis C, cirrhosis, and a compression fracture at cervical spine C-2.

In February 2015, Pratt and his wife (Wife), moved from Florida to Rock Hill to be
closer to their oldest daughter (Daughter) and her two young children. Around
12:30 a.m. on March 2, 2015, Pratt fell down a flight of stairs at Daughter's home.
When Daughter found Pratt at the bottom of the stairs, he was "[b]loody, battered,
broken, [and in the] fetal position. There was blood everywhere, all over the wall,
down the wall. His teeth were knocked out. His head was opened." Emergency
medical services transported Pratt to Piedmont Medical Center (PMC), where
emergency medicine physician Jonas Varaly1 and nurse Jeleesa Heyward treated
him. Pratt's chief complaints were rib and head pain.

Dr. Varaly ordered several diagnostic tests including, but not limited to, CT scans
of the cervical spine, chest, and brain. Virtual Radiology Corporation initially read
these scans as negative, but Dr. Gilleland, of Rock Hill Radiology Associates, read
the chest CT scan as showing nine non-displaced rib fractures.2 He also noted a

1
Dr. Varaly is associated with South Carolina Emergency Physicians, LLC.
2
Dr. Anthony Lupetin was qualified without objection as plaintiff's expert in
diagnostic radiology. Dr. Lupetin testified that "non-displaced rib fractures" are
commonly referred to as "buckle fractures." He further explained the word
"fracture" here referenced an angular deformation, as there was no crack, fracture
metastatic sternal lesion, emphysema, and a large adrenal mass. Although Dr.
Gilleland recorded his reading at 8:22 a.m. and placed it in Pratt's medical record,
he never called it in to the emergency room or otherwise notified Dr. Varaly of the
fractures or of any discrepancy in his reading versus that of Virtual Radiology.3

Within a few hours of his arrival in the emergency room, Pratt was discharged with
a prescription for Percocet and instructions to follow up with Carolina Ortho
Surgery Associates in two to three days. EMS transported him back to Daughter's
home, where he spent the next thirty-six hours on a sofa. On the morning of
March 4, EMS transported Pratt to the emergency department at Carolinas Medical
Center-Pineville (CMC) with complaints of difficulty walking, chest pain, and
back pain. There, he had another chest CT, which again identified the nine
non-displaced rib fractures. Dr. Lupetin later explained, "The left lower lobe of the
lung developed multiple findings, including thickening of the wall of the bronchi,
down there, some increased secretions. He was probably developing pneumonia at
that point."

Pratt was intubated and airlifted to Carolinas Medical Center-Main. A few days
later, he was diagnosed with pneumonia. On March 16, Pratt went into respiratory
distress, followed by renal failure. Pratt was discharged to palliative care on
March 21; he died on March 23.4

Wife filed this action alleging Appellants were negligent in failing to follow the
policy in place at PMC "to resolve the discrepancy between the interpretation of
Dr. Gilleland and the teleradiologist" and in "failing to notify [Pratt's] treating
physicians of the concerning CT Scan results." The circuit court later consolidated
this matter with Wife's action against Amisub and other medical providers.

line, break, or bone separation in any rib. Dr. Lupetin opined that a radiologist
should describe Pratt's fractures as "acute buckle fractures. There's nothing subtle
about that." And, on cross-examination, he reiterated that "a qualified radiologist
should look at these studies and say they're acute fractures."
3
Dr. Lupetin testified Dr. Gilleland violated the standard of care and the hospital's
standard of practice in failing to timely inform Dr. Varaly of the rib fractures.
4
Pratt's immediate cause of death was respiratory failure.
At the subsequent jury trial, Appellants moved for a directed verdict after Wife's
case-in-chief and again at the close of the evidence. The circuit court directed a
verdict in favor of Emergency Physicians, LLC and denied the other motions.

During trial, Wife settled with Amisub for $250,000. The jury returned defense
verdicts for Dr. Varaly on all claims and for Appellants on the wrongful death
claim, but found in Wife's favor on the survival and loss of consortium claims.
The jury allocated fault at 90% to Dr. Gilleland and 10% to Rock Hill Radiology,
awarding damages of $360,000 on the survival claim and $640,000 for loss of
consortium. The jury further found Appellants were reckless or grossly negligent,
rendering inapplicable the statutory limitation on noneconomic damages. The jury
declined to award punitive damages.

Appellants moved post-trial for JNOV or a new trial absolute. In the alternative,
Appellants requested reduction of the verdict pursuant to the noneconomic
damages cap of section 15-32-220 of the South Carolina Code (2005 & Supp.
2024) and sought to set off the $250,000 Amisub settlement. The circuit court
denied most of these motions but granted setoffs of $83,333.33 against both the
survival and loss of consortium claims. The circuit court later denied Appellants'
Rule 59(e), SCRCP motion to alter or amend the judgment.

Standard of Review

"When reviewing a motion for directed verdict or JNOV, an appellate court must
employ the same standard as the trial court." Byrd as Next Friend of Julia B. v.
McLeod Physician Assocs. II, 427 S.C. 407, 412-13, 831 S.E.2d 152, 154 (Ct. App.
2019) (quoting Wright v. Craft, 372 S.C. 1, 18, 640 S.E.2d 486, 495 (Ct. App.
2006)). "[W]e reverse only when there is no evidence to support the ruling or
when the ruling is governed by an error of law." Austin v. Stokes-Craven Holding
Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010). "Whether to grant a new trial
is a matter within the discretion of the trial judge, and this decision will not be
disturbed on appeal unless it is unsupported by the evidence or is controlled by an
error of law." Id. at 49, 691 S.E.2d at 149.

Analysis

I. Directed Verdict and JNOV

Appellants argue the circuit court erred in denying their motions for directed
verdict and JNOV as to Wife's survival and loss of consortium claims because the
jury's verdict demonstrates Wife failed to prove proximate cause. Appellants
contend the circuit court further erred in denying their dispositive motions
addressing gross negligence, recklessness, willfulness, and wantonness and in
failing to strike punitive damages at the directed verdict stage. We disagree.

When ruling on a directed verdict or JNOV motion, the circuit court must view the
evidence and the inferences that reasonably can be drawn from such in the light
most favorable to the nonmoving party. Sabb v. S.C. State Univ., 350 S.C. 416,
427, 567 S.E.2d 231, 236 (2002). This court follows the same standard. Welch v.
Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct. App. 2000). An appellate
court will reverse the circuit court's ruling only when no evidence supports the
ruling or when an error of law controls. Law v. S.C. Dep't of Corr., 368 S.C. 424,
434-35, 629 S.E.2d 642, 648 (2006). "[N]either the trial court nor the appellate
court has authority to decide credibility issues or to resolve conflicts in the
testimony or evidence." Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 463,
629 S.E.2d 653, 663 (2006).

A. Wrongful Death and Loss of Consortium Claims – Proximate Cause
and the Verdict Form

"In South Carolina, claims for personal injuries and for loss of consortium are
separate and distinct." Lee v. Bunch, 373 S.C. 654, 662, 647 S.E.2d 197, 201
(2007); see also Stewart v. State Farm Mut. Auto. Ins. Co., 341 S.C. 143, 156, 533
S.E.2d 597, 604 (Ct. App. 2000) ("Under South Carolina law, unlike that of some
other states, loss of consortium is an independent action, not derivative."). "Loss
of consortium arises out of the special relationship between a husband and wife."
Stewart, 341 S.C. at 156, 533 S.E.2d at 604. "Although loss of consortium is an
independent action, case law has held the right of action does not accrue until the
loss of the services, society and companionship of the spouse has actually
occurred, which has been defined as the point when the spouse sustained the
injuries." Id. "Any person may maintain an action for damages arising from an
intentional or tortious violation of the right to the companionship, aid, society and
services of his or her spouse. Provided, that such action shall not include any
damages recovered prior thereto by the injured spouse." S.C. Code Ann.
§ 15-75-20 (Supp. 2024).

South Carolina's Wrongful Death Act states:

Whenever the death of a person shall be caused by the
wrongful act, neglect or default of another and the act,
neglect or default is such as would, if death had not
ensued, have entitled the party injured to maintain an
action and recover damages in respect thereof, the person
who would have been liable, if death had not ensued,
shall be liable to an action for damages.

S.C. Code Ann. § 15-51-10 (Supp. 2024); see also S.C. Code Ann. § 15-51-20
(Supp. 2024) (providing a wrongful death action "shall be for the benefit of the
wife or husband and child or children . . . and, if there be no such wife, husband,
child or children, then for the benefit of the parent or parents, and if there be none
such, then for the benefit of the heirs").

Here, the circuit court charged the jury as to Wife's burden of proving Appellants'
negligence proximately caused Pratt's death and as to damages considerations in
wrongful death, survival, and loss of consortium actions. Some of the damages
available to Wrongful Death Act statutory beneficiaries may coincide with those
claimed by a surviving spouse through a loss of consortium claim. On the verdict
form, the jury found Appellants' breach of the standard of care "was the proximate
cause of Mr. William Pratt’s injuries" and returned a monetary award on the
survival and loss of consortium claims. The jury left blank the verdict form's line
for damages on the wrongful death claim.5

Appellants argue the jury's verdicts cannot be logically reconciled due to the
finding that Wife failed to prove damages for Pratt's wrongful death. They further
contend that based on this record, it is illogical to conclude Wife individually
proved her claim for loss of consortium but as personal representative failed to
prove wrongful death. We disagree.

5
Appellants objected to one proposed jury charge but voiced no complaint
regarding the fault allocation question or the verdict form generally. After the
circuit court instructed the jury, it gave the parties a second opportunity for
motions relating to the charges and verdict form; Appellants reiterated their
singular objection to the charge but otherwise raised no error. Thus, to the extent
Appellants now seek to challenge the verdict form, we find their arguments
unpreserved. See Gause v. Smithers, 403 S.C. 140, 151, 742 S.E.2d 644, 650
(2013) (finding verdict form issue unpreserved because "Father did not object to
the caption form until after the verdict had been read"); Johnson v. Hoechst
Celanese Corp., 317 S.C. 415, 421, 453 S.E.2d 908, 912 (Ct. App. 1995) (holding
that by failing to object to a verdict form until after the verdict had been reached, a
party failed to preserve any issue related to the verdict form).
A new trial should be granted where verdicts are "irreconcilably inconsistent";
however, it is the court's duty "to sustain verdicts when a logical reason for
reconciling them can be found." Austin, 387 S.C. at 49-50, 691 S.E.2d at 149. In
Self v. Goodrich, this court noted the applicable factors for assessing damages
under the Wrongful Death Act include: "(1) pecuniary loss, (2) mental shock and
suffering, (3) wounded feelings, (4) grief and sorrow, (5) loss of companionship,
and (6) deprivation of the use and comfort of the [decedent's] society, including the
loss of his experience, knowledge, and judgment in managing the affairs of himself
and of his beneficiaries." 300 S.C. 349, 351, 387 S.E.2d 713, 714 (Ct. App. 1989).
While some of these factors address loss of companionship and consortium, it "is
not sufficient to say that a plaintiff's verdict on wrongful death and a defense
verdict on loss of consortium are inconsistent." Burroughs v. Worsham, 352 S.C.
382, 406, 574 S.E.2d 215, 227 (Ct. App. 2002). The "parties benefiting from the
actions may be separate and distinct. Only the spouse may bring a loss of
consortium claim. However, the spouse, children, parents, or other heirs may be
the beneficiaries of the wrongful death award." Id. "[A] ruling on one does not
bar, nor entitle, recovery on the other claim." Id. at 406-07, 574 S.E.2d at 227.

Appellants further argue such an interpretation of the verdict "defies common
sense and the evidence in the record" and "the only logical explanation for the
jury's verdict is a defense verdict based on the issue of proximate cause" because
"in effect, the jury found that the breach of the standard of care did not proximately
cause [Pratt's] death." However, Appellants failed to pursue this argument before
the jury was discharged; thus, the circuit court did not have the opportunity to
address any perceived inconsistency. See Ex Parte Travelers Home & Marine Ins.
Co. v. Stringfellow, 427 S.C. 238, 242, 830 S.E.2d 718, 720 (Ct. App. 2019)
("Some post-trial motions—such as those seeking to correct or clarify an
inconsistent verdict—must for practical reasons be made before the jury is
discharged, or they are forever lost."); Stevens v. Allen, 342 S.C. 47, 53, 536 S.E.2d
663, 666 (2000) ("We agree with the Court of Appeals' conclusion that, under
South Carolina law, the proper and most consistent approach of treating such
verdicts is to require, upon request, the trial court to re-submit the matter to the
jury."); Longshore v. Saber Sec. Servs., Inc., 365 S.C. 554, 563, 619 S.E.2d 5, 10
(Ct. App. 2005) (explaining "[n]either party moved the trial court to resubmit the
matter to the jury, and the trial court had no authority or duty to do so in the
absence of such a motion"). And, as previously noted, the jury specifically found
in Wife's favor on the question of proximate cause.

Citing Hoard v. Roper Hospital, Inc., 387 S.C. 539, 694 S.E.2d 1 (2010),
Appellants assert the two-day delay in diagnosis attributable to their errors was
harmless because "there is no evidence that the rib injury would have been treated
any differently in those two days." In Hoard, the plaintiffs argued a radiologist
breached the standard of care by failing to properly report that a catheter inserted
in an infant was "malpositioned." Id. at 544, 694 S.E.2d at 3. The improperly
placed catheter eroded the newborn's heart wall and led to her death. Id. at 543,
694 S.E.2d at 3. In affirming summary judgment for the radiologist, our supreme
court explained:

Dr. Smith correctly contends the record fails to establish
that a genuine question of material fact exists regarding
whether his alleged failure to act within the standard of
care could have been a proximate cause of Jamia's
cardiac arrest and subsequent injuries. This is so because
the record demonstrates that Dr. Goldstein was aware of
the standard of care concerning UVC placement and he
made an intentional and independent decision not to
move the UVC based on numerous factors.

Id. at 548, 694 S.E.2d at 5. Thus, our supreme court concluded the plaintiffs failed
to present any evidence that the radiologist's alleged breach of the standard of care
in his reporting related to the catheter placement was a proximate cause of the
infant's injuries. Id. at 549, 694 S.E.2d at 6.

But Hoard is not instructive to our review of proximate cause here in light of the
various factors the Hoard physicians evaluated, notably Dr. Goldstein's judgment
that "removing the UVC presented greater risk to Jamia than leaving it in place."
Id. at 547, 694 S.E.2d at 5. In Pratt's case, Dr. Varaly was unaware that the March
2 CT chest scan showed acute rib fractures. Dr. Varaly testified that had he known
the March 2 CT chest scan revealed nine non-displaced rib fractures, he would
have worked to have Pratt admitted to a trauma hospital. Moreover, Wife's
emergency medicine expert, Dr. Michael Chansky, testified emergency medicine
doctors "depend on the radiologist to call us with the discrepancy." In sum, our
review of the record reveals evidence supporting the jury's verdict as to Wife's
survival action and on her loss of consortium claim. See Austin, 387 S.C. at 42,
691 S.E.2d at 145 ("[W]e reverse only when there is no evidence to support the
ruling or when the ruling is governed by an error of law.").

Wife presented abundant evidence demonstrating how Pratt's condition
deteriorated over the disputed two-day period. For example, Dr. Lupetin used
Pratt's March 2 and 4 CT chest scans side-by-side to show the jury the concerning
changes in Pratt's lung anatomy. In just two days, Pratt's lung volume decreased
and his bronchi walls were thickening in a way that suggested he was developing
pneumonia. The March 4 image shows "the lung has collapsed."

Echoing Dr. Varaly's testimony that he would have sent Pratt to a trauma center
had he known of the March 2 multiple rib fracture findings, Dr. Chansky testified
about bilateral rib fracture complications:

Yeah, bilateral contiguous rib fractures, even
nondisplaced, that don't look too impressive on CAT
scan is 100 percent admission to the hospital for
aggressive respiratory therapy, watch for signs of
pneumonia. Because once you get pneumonia, the rib
fractures, even if they're small, it's very painful to cough.
If you can't cough up the purulent sputum, the puss, the
bacteria, the infection is going to become more severe
and lead to death.

So rib fractures are treated very aggressively—two or
more rib fractures are treated very aggressively by
trauma centers for the prevention of pneumonia and those
complications by the things that I've described, walking,
oxygen, chest therapy, incentive spirometry, Ventolin,
inhalation therapy. They are preventative in forming
pneumonia.

Wife's internal medicine and hospitalist expert Hiren Shah also addressed Pratt's
medical records. Dr. Shah stated that at one point during this two-day period,
Pratt's oxygen saturation reading fell as low as 80%,6 and he required supplemental
oxygen on March 4. This collection of vital sign readings—a low oxygen level
combined with a high respiratory rate, body temperature, blood pressure, and white
blood cell count—showed mucus was building up in Pratt's lungs, his body was
attempting to mount a response to the burgeoning pneumonia infection, and one of
his lungs was starting to collapse.

6
Dr. Shah testified, "A normal oxygen level is well above 92 percent and you have
to put it in the right picture. Normal is actually—what we commonly see is 95, 96,
depending on how you want to define normal. It could be more than 92. Even 92,
if someone has these other problems is bad so, [80-88 percent is] really low."
Daughter testified that while she was concerned about Pratt's condition on March
2, he was considerably worse on March 3. Her father was taking "very light, very
shallow breaths" and there was blood in his urine. Wife testified Pratt was in
considerable pain, he was unable to move, and his breathing was "very slow."

We find the record supports the circuit court's denial of Appellants' motions for
directed verdict and JNOV on the survival and loss of consortium claims. Drs.
Lupetin, Shah, and Chansky provided the causal connection between the delayed
treatment of Pratt's acute rib injuries and his developing pneumonia. Accordingly,
we affirm the circuit court as to these issues.

B. Gross Negligence, Recklessness, Willfulness, Wantonness, and Punitive
Damages

"'Recklessness implies the doing of a negligent act knowingly'; it is a 'conscious
failure to exercise due care.'" Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d
607, 612 (2011) (quoting Yaun v. Baldridge, 243 S.C. 414, 419, 134 S.E.2d 248,
251 (1964)). "[T]he terms 'willful' and 'wanton' when pled in a negligence case are
synonymous with 'reckless,' and import a greater degree of culpability than mere
negligence." Id. at 288, 709 S.E.2d at 612 (quoting Marcum v. Bowden, 372 S.C.
452, 458 n. 5, 643 S.E.2d 85, 88 n. 5 (2007)). Gross negligence, a lesser
culpability standard, is a "relative term" meaning "the absence of care that is
necessary under the circumstances" or "the failure to exercise slight care." Jinks v.
Richland County, 355 S.C. 341, 345, 585 S.E.2d 281, 283 (2003)."

Multiple expert witnesses testified that the nine non-displaced rib fractures were
acute injuries and that Dr. Gilleland improperly ignored the discrepancy between
his and Virtual Radiology's initial interpretation of the chest CT scan. Because the
initial chest CT scan showed multiple "acute buckle fractures," Virtual Radiology's
interpretation was a "very significant" or "major" discrepancy that Dr. Gilleland
could not leave uncommunicated. This error went beyond ordinary negligence
because—according to Wife's experts—failing to call in the discrepancy under
such circumstances violated hospital policy requiring a radiologist to call the ER if
a chest image shows acute rib injuries or where "the radiologist is unsure of their
acuity." In his deposition testimony presented at trial, Dr. Gilleland testified he
"did not know" whether the rib injury shown on Pratt's March 2 chest CT was
acute. By contrast, Dr. Gilleland's trial cross-examination testimony supports the
jury's finding that he acted in a grossly negligent or reckless manner:
Q. According to your own testimony he had some
cracked ribs. All right. Doctor, you knew that the E.R.
doctor had ordered the CT on 3-2 in part to know
specifically if there were any rib fractures present,
correct?

A. Correct.

Q. You were aware when you saw that there were nine
fractures that were not on the original until report, you
knew that the E.R. doctor had already discharged the
patient without having that knowledge, right?

A. Yes.

Q. And you knew that the E.R. doctor had made the
decision to discharge him with the information of no rib
fractures versus nine rib fractures.

A. There were no significant fractures.

....

Q. You knew unless you looked, the ER doctor would
not be aware of the mistake from zero acute fractures to
whatever you want to call them?

A. Absolutely.

Q. You have been here for the testimony of Dr. Varaly
where he clearly testified that—testimony was had he
known about rib fractures, that would have been very
clinically significant to him, right?

A. I think the question—I did I hear that. Yes. I heard
that testimony.

Q. You heard him testify it was very clinically significant
to him if he had known about nine cracked ribs he would
have immediately transferred this patient to a trauma
center for observation under a trauma surgeon. That was
his testimony, right?

A. That is his testimony. These are not those kinds of
fractures. For that reason, it would be inappropriate.

Q. You know better than the ER doctor who has actually
seen the patient, touched the patient, knew the patient
best. You knew better than that doctor who has seen the
patient, right?

A. Correct. The person who looks at the images is the
one who most often determines the significance of the
image findings.

....

Q. Doctor, can we agree that if there were multiple
cracked ribs present, as you talked about in your
deposition, it would be improper for a radiologist to
make a determination whether they were clinically
significant versus the E.R. doctor letting him make the
decision. Can we agree on that?

A. Yes. Qualified if you use the word cracked, then you
are talking about a fracture type that actually has a visible
line which nobody—your expert says they see a visible
line in this case. It comes down to the pencil that is
dented, somebody chewed on or it is fractures.

Q. Radiologists are not clinicians?

A. I actually do a procedure where I do history. It's
hospital-based.

Q. Look at the testimony that has been given in your case
by Dr. Parnes, who is the expert who is the witness that
you have hired to come and can give testimony on your
behalf. He testified that radiologists are not clinicians.
So you disagree with your own witness?
Do you agree that it is not your job as a radiologist to
look at the study and decide treatment decisions for the
patient? Do you agree?

A. No. I think that is almost impossible. When I do not
mention findings that I think[] is insignificant.

By definition, you wouldn't want to go down a certain
treatment pattern. So whether it's missed or not, there is
a clinical outcome. So everything I do every day is the
decision of such findings.

Q. All right. So you disagree with your own witness.
That is what you are telling us? Let's get to the next
answer.

So you made [an argument] in this particular case that
these fractures were not clinically significant, right?

A. I made an educated guess, yes.

Q. It's your testimony that on 3-2 that these were not
significant? Simple yes or no, Doctor.

A. Yes. I would point out that this patient afterwards was
not short of breath. There was at no point that he is
having difficulty breathing.

....

Q. So when Dr. Varaly who has reviewed all the medical
records in this case and has reviewed deposition
testimony as the defendant in this case and knows as
much as anybody else does about this case, states that in
his opinion the fractures that you found would have been
clinically significant, except doesn't know what he is
talking about?

A. Twist that.
Q. Yes or no[?]

[A]. I think the answer is no. Because, he does not—that
is an inaccurate statement. He doesn't know what I
know. At that point in time, he does not have the
information.

Q. He doesn't have the information because you didn't
pick up the phone and tell him that.

A. Correct. Tell him that his patient may have bone
bruises, which as your own witness says, that it's
improper to make assumptions.

We find Wife presented ample evidence that Dr. Gilleland acted with conscious
indifference; thus, the circuit court properly denied Appellants' directed verdict and
JNOV motions as to "gross negligence, recklessness, willfulness, and wantonness"
and correctly submitted the question of punitive damages to the jury. See Welch,
342 S.C. at 301, 536 S.E.2d at 419 ("The issue of punitive damages must be
submitted to the jury if more than one reasonable inference can be drawn from the
evidence as to whether the defendant's behavior was reckless, willful, or wanton.").

Citing this court's decision in Hamilton v. Regional Medical Center, 440 S.C. 605,
891 S.E.2d 682 (Ct. App. 2024), cert. denied (May 1, 2024), Appellants contend
the circuit court erroneously permitted Dr. Lupetin to testify that Dr. Gilleland's
conduct was "reckless" because such a characterization provided an impermissible
legal conclusion. In Hamilton, the medical provider appellant argued the circuit
court abused its discretion in prohibiting its expert witness from testifying as to
whether Regional Medical Center was grossly negligent or negligent. 440 S.C. at
632, 891 S.E.2d at 696. This court disagreed:

The trial court did not abuse its discretion by preventing
Regional from asking Hurley explicitly if Regional
committed negligence or gross negligence. Asking
Hurley that question would have been asking her to form
a legal conclusion, which would have been inadmissible.
The fact that she is a nurse and not a lawyer or other legal
expert does not make a difference; her answer could
confuse the jury particularly because negligence could
have a broader meaning outside of the legal definition.
Accordingly, we affirm the trial court's prohibiting
Hurley from testifying if she believed Regional was
negligent or grossly negligent.

Id. at 634, 891 S.E.2d at 698.

Here, counsel for Wife asked Dr. Lupetin, "Doctor, would you consider the
conduct in this case to be reckless?" Dr. Lupetin answered, "Yes." While we
agree such a question seeks an inadmissible legal conclusion in certain instances,
we find no reversible error here. Dr. Lupetin's aggregate testimony addressed Dr.
Gilleland's interpretation of the scan reading discrepancy and his conscious
decision not to contact the emergency department regarding his findings.
Additionally, Chief of Radiology Bruce Leonard's deposition testimony, portions
of which were read into the record during Dr. Lupetin's cross-examination,
provides further support for the jury's finding that Dr. Gilleland consciously
disregarded a well-known policy among radiologists (as well as the standard of
care) by taking it upon himself to consider the likely impact on Pratt's treatment
course when determining how (or whether) to properly respond to the reading.

Specifically, Dr. Leonard agreed with the following statement: "So the policy of
Piedmont Medical Center is that if there's evidence to suggest the rib fractures are
acute, nine rib fractures are acute and they haven't been noticed on Virtual
Radiology, that those acute, nine acute rib fractures need to be communicated
either [sic] direct physician or leaving a message through the ER line." As noted
above, Dr. Gilleland's own trial testimony emphasized his conscious choice not to
communicate the scan reading discrepancy to the emergency department.7 Thus,
even if the circuit court erred in permitting the question asking whether Dr.
Gilleland's conduct was "reckless," Appellants have failed to establish the required
resulting prejudice. In reaching this result, we reference the evidence of conscious
indifference presented through the expert witnesses as well as the jury's defense
verdict on punitive damages. See also Berberich, 392 S.C. at 287, 709 S.E.2d at
612 (explaining the term "recklessness" includes "'the doing of a negligent act
knowingly'; it is a 'conscious failure to exercise due care'").8

7
Dr. Gilleland further admitted that in reviewing Pratt's scan, he "expected him to
become a hospice patient."
8
One other point relating to Appellants' argument on this issue bears reference.
Appellants state they "experienced great difficulty in obtaining the trial transcript,
II. New Trial Absolute

Appellants next argue the circuit court erred in denying their motion for a new trial
absolute because the jury's verdict was ambiguous, strongly indicative of juror
confusion, and grossly excessive. We disagree.

Appellate courts give great deference to circuit courts in this context because the
trial court "possesses a better-informed view of the damages than" an appellate
court since the trial court "heard the evidence and is more familiar with the
evidentiary atmosphere at trial." Vinson v. Hartley, 324 S.C. 389, 405-06, 477
S.E.2d 715, 723 (Ct. App. 1996). "Accordingly, the decision to grant a new trial is

and there are numerous places where the transcript can be challenged as not being
accurate or complete." By way of example, Appellants explain:

One primary such place involves the inquiry by the
Respondent's counsel to Dr. Lupetin as to whether the
conduct of Dr. Gilleland was "reckless." The transcript
does not show that a contemporaneous objection to that
question was made by the Appellants' counsel or ruled
upon by the trial court. The transcript gives no indication
of even a side bar occurring. However, the issue arose
again a short time later when the jury was out of the
courtroom. The Appellants' counsel raised the objection
as to the expert offering an opinion on recklessness.
There is mention of a sidebar, and the trial court stated
that the "objection's in" and further stated, "I noted the
objection at the time it was made, but I still stand by my
ruling, and I overruled your objection." The transcript
does not reflect the sidebar or the court's ruling based on
that sidebar, which is likely the result of errors in the
transcription, but the later comments from the court
should be sufficient to demonstrate that a
contemporaneous objection was made and this issue is
properly preserved for appellate review.

We agree with Appellants that this issue is properly preserved.
left to the sound discretion of the trial court and generally will not be disturbed on
appeal." Wright, 372 S.C. at 36, 640 S.E.2d at 505.

We do not view the jury's verdicts as ambiguous or indicative of jury confusion.
The verdict form included questions on the breach and proximate cause elements
of Pratt's three negligence-based claims. The jury was then asked in a single
question to state the amount of any damages, if any, awarded on each of the three
claims. If the jury found any of the three claims lacking based on the damages
element, the proper way to deliver that finding was to leave blank the damages line
for that particular claim as was done here. In doing so, the jury conveyed that
Appellants recklessly violated their legal duties and proximately caused some
($1,000,000) but not all ($5,000,000) of the harm Wife alleged in her complaint.
The jury's awards are supported by the evidence presented at trial and consistent
with the circuit court's jury instructions.

Likewise, we disagree that the jury's verdict is grossly excessive. "The decision to
grant or deny a new trial absolute based on the excessiveness of a verdict rests in
the sound discretion of the trial court and ordinarily will not be disturbed on
appeal." Welch, 342 S.C. at 302, 536 S.E.2d at 420. "An abuse of discretion
occurs if the trial court's findings are wholly unsupported by the evidence or the
conclusions reached are controlled by an error of law." Id. "In deciding whether
to assess error when a new trial motion is denied, this Court must consider the
testimony and reasonable inferences therefrom in the light most favorable to the
nonmoving party." Id. at 302-03, 536 S.E.2d at 420.

The evidence at trial showed Pratt and Wife were married for thirty-five years and
raised three children together. For twenty-eight of their thirty-five years of
marriage, Pratt and Wife were not only spouses but also business partners. Pratt, a
former professional musician, spontaneously composed songs about his beloved
wife and three children. Wife testified Pratt was "amazing"—a family leader
known for being "[v]ery compassionate, strong, [and] loving" and that Wife and
Pratt "relied on each other for everything." Wife concluded her testimony by
describing her husband as "one of a kind" and irreplaceable because he was "too
unique" and "too creative" with "too much compassion."

Despite Appellants' arguments to the contrary, we find Wife's losses began when
she watched Pratt suffer through the ambulance ride back to Daughter's house.
Once there, Pratt was not able to comfort or care for Wife because he lay in pain
largely immobilized on the couch. The aid and advice Wife testified she was
accustomed to receiving from her husband vanished when Pratt was rendered
unable to speak. Wife had to assist Pratt in reaching the bathroom and, when he
was unable to walk, she helped him urinate in a bottle; the contents of the bottle
became bloody during these two days. Wife watched on helplessly as her husband
was unable to eat and his breathing became more difficult.

Appellants point to no evidence in the record to support their argument that the aid,
comfort, and support Pratt was unable to provide Wife while she cared for him on
the sofa would have been equally lacking had he been in a hospital setting
receiving aggressive therapy to reduce his pain and improve his shallow breathing.
Similarly, their insistence that Wife's loss of consortium claim should be limited to
the two-day period between Pratt's PMC discharge and his admission and diagnosis
at CMC-Pineville is not supported in the record. Instead, the evidence shows
Appellants' negligence deprived Pratt of necessary and immediate in-patient care.
Even after Pratt was properly diagnosed and began treatment within CMC trauma
facilities, his drastic decline in health continued to negatively affect his ability to
carry on the loving relationship he and Wife enjoyed throughout their
thirty-five-year marriage. The jury was not required to restrict its deliberation on
this claim to the identified forty-eight-hour period.

Appellants further argue a $640,000 loss of consortium award is just too much
under these circumstances. However, valuing the intangible losses that comprise a
loss of consortium claim is a difficult task for the factfinder—here, the jury— that
had the chance to directly hear the evidence and observe the witnesses. We see
nothing in this award that is out of bounds when compared with other awards in
South Carolina jurisprudence. See, e.g., Keene v. CNA Holdings, LLC, 426 S.C.
357, 384-87, 827 S.E.2d 183, 198-99 (Ct. App. 2019), aff'd, 436 S.C. 1, 870 S.E.2d
156 (2021) (affirming circuit court's order finding $5,000,000 loss of consortium
award was supported by the evidence—such as wife's testimony addressing
forty-seven years of marriage to her best friend—and was not excessive); Scott v.
Porter, 340 S.C. 158, 170-71, 530 S.E.2d 389, 395-96 (Ct. App. 2000) (affirming
award of $600,000 in actual damages on survival claim for a child whose
conscious pain and suffering covered less than a two-day period where plaintiff's
evidence included only $85 in medical costs but significant circumstantial
evidence of child's pain and suffering).

Finally, for such an award to be declared "grossly excessive," Appellants must
show the circumstances in which it was entered suggest the jury was motivated by
passion or prejudice. See Elam v. S.C. Dep't of Transp., 361 S.C. 9, 27, 602 S.E.2d
772, 781 (2004) ("When considering a motion for a new trial based on the
inadequacy or excessiveness of the jury's verdict, the trial court must distinguish
between awards that are merely unduly liberal or conservative and awards that are
actuated by passion, caprice, or prejudice."). We see nothing in the trial transcript
to support such a conclusion. In fact, the verdicts here demonstrate that even after
finding Appellants were reckless/grossly negligent, the jury declined to award
punitive damages. For these reasons, we affirm the circuit court's denial of
Appellant's motion for a new trial absolute.

III. Allocation of Fault

Appellants next challenge both the circuit court's requirement that the jury allocate
fault as well as the allocation of 10% of the fault to Rock Hill Radiology. We find
no error by the circuit court.

As discussed in Section I.A, supra, Appellants raised no complaint before the
circuit court with respect to the verdict form generally. Nor did they specifically
challenge the verdict form's fault allocation section. We note Appellants may have
elected not to raise an objection here because they had agreed earlier in the trial
that Wife was permitted to argue Rock Hill Radiology was liable for Virtual
Radiology's error. The circuit court acknowledged this concession and
subsequently instructed the jury it could find liability against any (or none) of the
three defendants listed on the verdict form. In our view, this concession fatally
undermines Appellants' argument that faulting Rock Hill Radiology for Virtual
Radiology's error impermissibly extends beyond the claims Wife pled in her
complaint. Even if the complaint did not spell out Rock Hill Radiology's liability
for this error in great detail, "[w]hen issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings." Rule 15(b), SCRCP.

Moreover, we note Appellants' current objection to the verdict form's fault
allocation question must fail on the merits. Wife produced evidence from which a
jury could find Rock Hill Radiology at fault for Virtual Radiology's conduct. Dr.
Gilleland testified Rock Hill Radiology had an exclusive radiology services
contract with PMC and, seeking to avoid late night work, made the choice to bring
in Virtual Radiology to read all PMC radiological images during the hours of 11
p.m. to 7 a.m. Expert testimony established Virtual Radiology's initial read of
Pratt's CT chest scan was grossly inaccurate in that it missed an acute
abnormality—i.e., the nine non-displaced rib fractures. Based on the way the
evidence was presented, the jury was free to evaluate whether Rock Hill Radiology
was responsible—or partially responsible—for Virtual Radiology's misreading of
the March 2 scan.
In the 2005 South Carolina Contribution Among Joint Tortfeasors Act (the Act),9
our legislature abrogated pure joint and several liability for tortfeasors less than
50% at fault. The Act "directs the fact-finder to apportion one-hundred percent of
the fault between the plaintiff and 'each defendant whose actions are the proximate
cause of the indivisible injury.'" Smith v. Tiffany, 419 S.C. 548, 553, 799 S.E.2d
479, 481 (2017) (quoting § 15-38-15(C)(3)). Under the Act, the apportionment of
fault is determined as follows:

(A) In an action to recover damages resulting from
personal injury, wrongful death, or damage to property or
to recover damages for economic loss or for
noneconomic loss such as mental distress, loss of
enjoyment, pain, suffering, loss of reputation, or loss of
companionship resulting from tortious conduct, if
indivisible damages are determined to be proximately
caused by more than one defendant, joint and several
liability does not apply to any defendant whose conduct
is determined to be less than fifty percent of the total
fault for the indivisible damages as compared with the
total of: (i) the fault of all the defendants; and (ii) the
fault (comparative negligence), if any, of plaintiff. A
defendant whose conduct is determined to be less than
fifty percent of the total fault shall only be liable for that
percentage of the indivisible damages determined by the
jury or trier of fact.

(B) Apportionment of percentages of fault among
defendants is to be determined as specified in subsection
(C).

(C) The jury, or the court if there is no jury, shall:

(1) specify the amount of damages;

(2) determine the percentage of fault, if any, of
plaintiff and the amount of recoverable damages

9
S.C. Code Ann. §§ 15-38-10 to -70 (2005 & Supp. 2024).
under applicable rules concerning "comparative
negligence"; and

(3) upon a motion by at least one defendant, where
there is a verdict under items (1) and (2) above for
damages against two or more defendants for the
same indivisible injury, death, or damage to
property, specify in a separate verdict under the
procedures described at subitem (b) below the
percentage of liability that proximately caused the
indivisible injury, death, damage to property, or
economic loss from tortious conduct, as
determined by item (1) above, that is attributable
to each defendant whose actions are a proximate
cause of the indivisible injury, death, or damage to
property. In determining the percentage
attributable to each defendant, any fault of the
plaintiff, as determined by item (2) above, will be
included so that the total of the percentages of fault
attributed to the plaintiff and to the defendants
must be one hundred percent. In calculating the
percentage of fault attributable to each defendant,
inclusion of any percentage of fault of the plaintiff
(as determined in item (2) above) shall not reduce
the amount of plaintiff's recoverable damages (as
determined under item (2) above).

(a) For this purpose, the court may determine that
two or more persons are to be treated as a single
party. Such treatment must be used where two or
more defendants acted in concert or where, by
reason of agency, employment, or other legal
relationship, a defendant is vicariously responsible
for the conduct of another defendant.

(b) After the initial verdict awarding damages is
entered and before the special verdict on
percentages of liability is rendered, the parties
shall be allowed oral argument, with the length of
such argument subject to the discretion of the trial
judge, on the determination of the percentage
attributable to each defendant. However, no
additional evidence shall be allowed.

§ 15-38-15 (A)-(C).

We find Appellants' reliance on § 15-38-15(C)(3)(a) is misplaced in this case.
First, this provision requires a court to treat two defendants as one only when they
act "in concert" or where one of the defendants is responsible solely based on its
vicarious liability for the other. Id. Because there is evidence in the record
pertaining to Rock Hill Radiology's liability for Virtual Radiology's error in
addition to Dr. Gilleland's separate errors, § 15-38-15(C)(3)(a) is likely
inapplicable. Perhaps more significantly, because the jury found Rock Hill
Radiology and Dr. Gilleland were reckless or grossly negligent, none of the
provisions of § 15-38-15 apply. See § 15-38-15(F) ("This section does not apply to
a defendant whose conduct is determined to be wilful, wanton, reckless, [or]
grossly negligent . . . ."). Accordingly, we find the circuit court did not err in
requiring the jury to allocate fault or in upholding the 10% allocation of fault to
Rock Hill Radiology.

IV. Noneconomic Damages Cap

Appellants next argue the circuit court erred in failing to reduce the verdict based
on a noneconomic damages cap of $431,865. We disagree.

The South Carolina Noneconomic Damages Award Act of 2005 places the
following limits on noneconomic damages:

(A) In an action on a medical malpractice claim when
final judgment is rendered against a single health care
provider, the limit of civil liability for noneconomic
damages of the health care provider is limited to an
amount not to exceed three hundred fifty thousand
dollars for each claimant, regardless of the number of
separate causes of action on which the claim is based,
except as provided in subsection (E).

(B) 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 noneconomic
damages is limited to an amount not to exceed three
hundred fifty thousand dollars for each claimant,
regardless of the number of separate causes of action on
which the claim is based, except as provided in
subsection (E).

(C) In an action on a medical malpractice claim when
final judgment is rendered against more than one health
care institution, or more than one health care provider, or
any combination thereof, the limit of civil liability for
noneconomic damages for each health care institution
and each health care provider is limited to an amount not
to exceed three hundred fifty thousand dollars for each
claimant, and the limit of civil liability for noneconomic
damages for all health care institutions and health care
providers is limited to an amount not to exceed one
million fifty thousand dollars for each claimant, except as
provided in subsection (E).

(D)(1) The provisions of this section do not limit the
amount of compensation for economic damages suffered
by each claimant in a medical malpractice claim.

(2) The provisions of this section do not limit the amount
of punitive damages in cases where the plaintiff is able to
prove an entitlement to an award of punitive damages as
required by law.

(E) The limitations for noneconomic damages rendered
against any health care provider or health care institution
do not apply if the jury or court determines that the
defendant was grossly negligent, wilful, wanton, or
reckless, and such conduct was the proximate cause of
the claimant's noneconomic 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.

S.C. Code Ann. § 15-32-220 (A)-(E) (2005 & Supp. 2024).
Appellants note the circuit court "presumably refused to apply the non-economic
damages cap based on the jury's finding that the Appellants 'were reckless or
grossly negligent in their care and treatment of [Pratt].'" On appeal, Appellants
maintain that because they "were entitled to a JNOV on the issue of recklessness or
gross negligence, they are also entitled to a cap of $431,865 on the noneconomic
damages." However, for the reasons discussed in Section I.B, supra, we find the
evidence more than supports the jury's finding of recklessness or gross negligence.
And, by its plain language, § 15-32-220's damages limitation provisions do not
apply to such an enhanced level of culpability.

V. Setoff

Finally, Appellants contend the circuit court erred in allowing Wife to alter an
earlier proposed allocation of settlement funds following the return of the jury's
verdict. Stated differently, Appellants argue the circuit court should have setoff
the $250,000 Amisub settlement based on the allocation Wife announced early in
the trial when the settlement was initially placed on the record. We disagree.

The "jurisdiction of the court to set off one judgment against another is equitable in
its nature, and should be exercised so as to do justice between parties." Riley v.
Ford Motor Co., 414 S.C. 185, 195, 777 S.E.2d 824, 830 (2015) (quoting Rookard
v. Atlanta & Charlotte Air Line Ry. Co., 89 S.C. 371, 71 S.E. 992, 995 (1911)). "A
non-settling defendant is entitled to credit for the amount paid by another
defendant who settles for the same cause of action." Rutland v. S.C. Dep't of
Transp., 400 S.C. 209, 216, 734 S.E.2d 142, 145 (2012). "The reason for allowing
such a credit is to prevent an injured person from obtaining a second recovery of
that part of the amount of damages sustained which has already been paid to him."
Welch, 342 S.C. at 312, 536 S.E.2d at 425; "In other words, there can be only one
satisfaction for an injury or wrong." Id.

In 1988, these equitable principles were codified through the Uniform Contribution
Among Tortfeasors Act. §§ 15-38-10 to -70. Section 15-38-50 provides:

When a release or a covenant not to sue or not to enforce
judgment is given in good faith to one of two or more
persons liable in tort for the same injury or the same
wrongful death:
(1) it does not discharge any of the other tortfeasors from
liability for the injury or wrongful death unless its terms
so provide, but it reduces the claim against the others to
the extent of any amount stipulated by the release or the
covenant, or in the amount of the consideration paid for
it, whichever is the greater; and

(2) it discharges the tortfeasor to whom it is given from
all liability for contribution to any other tortfeasor.

When a prior settlement involves compensation for the same injury, the nonsettling
defendant's right to a setoff arises by operation of law under § 15-38-50. Ellis v.
Oliver, 335 S.C. 106, 112, 515 S.E.2d 268, 271 (Ct. App. 1999). "However, our
case law favors a plaintiff's ability to apportion settlement proceeds 'in the manner
most advantageous to it.'" Jolly v. Gen. Elec. Co., 435 S.C. 607, 666-67, 869
S.E.2d 819, 851 (Ct. App. 2021) (quoting Riley, 414 S.C. at 197, 777 S.E.2d at
831), aff'd Jolly v. Fisher Controls Int'l, LLC, 443 S.C. 511, 905 S.E.2d 380
(2024).

These codified equitable principles reflect "the proper balance between preventing
double-recovery and South Carolina's 'strong public policy favoring the settlement
of disputes.'" Riley, 414 S.C. at 196, 777 S.E.2d at 830 (quoting Chester v. S.C.
Dep't of Pub. Safety, 388 S.C. 343, 346, 698 S.E.2d 559, 560 (2010)). In Riley, our
supreme court explained:

A plaintiff who enters into a settlement with a defendant
gains a position of control and acquires leverage in
relation to a nonsettling defendant. This posture is
reflected in the plaintiff's ability to apportion the
settlement proceeds in the manner most advantageous to
it. Settlements are not designed to benefit nonsettling
third parties. They are instead created by the settling
parties in the interests of these parties. If the position of
a nonsettling party is worsened by the terms of a
settlement, this is a consequence of the refusal to settle.
A defendant who fails to bargain is not rewarded with the
privilege of fashioning and ultimately extracting a benefit
from the decisions of those who do.
Id. at 197, 777 S.E.2d at 831 (quoting Lard v. AM/FM Ohio, 901 N.E.2d 1006,
1019 (Ill. App. 2009)).

After trial, the circuit court entered a $1,000,000 judgment for Wife on February
10, 2020. By form order filed May 4, 2020, the court granted "a set off of
Plaintiff's claims in the amount of $83,333.33 each for the survival claim and the
loss of consortium claim from the time the judgment was rendered on February
10th, 2020."

The parties do not dispute that Wife's claims against Amisub were the same as
those asserted against Appellants. There is likewise no dispute that the injuries
claimed against Amisub were the same injuries claimed against Appellants. In
short, while the parties agree that Appellants are entitled by statute and in equity to
some setoff, they disagree as to the amounts the circuit court could reasonably set
off against Wife's three causes of action.

Although this discussion is absent from the trial transcript,10 Wife properly
conceded in her memorandum in opposition to Appellants' post-trial motions that
when the settlement was announced mid-trial, "the parties suggested the settlement
funds might be allocated with 90% apportioned to the loss of consortium claim and
5% allocated respectively to the survival and wrongful death claims." At that stage
of the trial, the circuit court responded, "We will have an approval hearing in front
of me sometime in the next few days." This was a logical and appropriate response
because, as our supreme court recently explained, such a settlement allocation
hearing "may take place only after the jury verdict because until then there is no
issue to resolve." Jolly, 443 S.C. at 534, 905 S.E.2d at 392. "Thus, while the
setoff judge must consider such an agreed-upon allocation, the ultimate 'reasonable
allocation' can be determined only after the setoff judge has heard the arguments of
the non-settling defendant following the jury verdict." Id.

In her petition for approval of the Amisub settlement, Wife sought a different
allocation of the $250,000 among the three claims than was suggested to the court
and the parties mid-trial. Wife proposed an allocation of one-third of the
settlement proceeds to each claim, seeking to reduce the setoff against the loss of
consortium claim from $225,000 to $83,333.33, increase the setoff against the
survival claim from $12,500 to $83,333.33, and increase the setoff against the
wrongful death claim from $12,500 to $83,333.33. The circuit court
acknowledged the parties' arguments—including the statements made when the

10
Three pages are missing at this point in the transcript. See FN8, supra.
settlement was initially placed on the record—and applied the setoffs in the
manner Wife requested in her post-trial settlement approval petition.

Appellants contend the circuit court erred in failing to "give effect to the settling
parties' agreement" and that it was "inherently unfair and inequitable" for the court
to allow Wife to finalize the allocation only after the verdict was returned and after
she knew the result from trial. But our review of the record (and our supreme
court's Jolly opinion) convinces us that the circuit court properly exercised its
discretion in granting setoffs of $83,333.33 (each) against the survival and loss of
consortium claims. See, e.g., Jolly, 443 S.C. at 534, 905 S.E.2d at 392 ("Therefore,
if there is an agreement between the settling parties allocating settlement funds, or
a ruling by a judge approving such a settlement, or even—as here—a unilateral,
internal allocation by the plaintiff, the setoff judge may accept that allocation only
if the judge determines it is reasonable."). The circuit court could accept a
proposed allocation of the settlement proceeds as reasonable only after the jury's
verdict was returned. We affirm the circuit court's well-reasoned consideration of
the appropriate setoffs and its allocation of the settlement funds.

Conclusion

The circuit court's orders denying Appellants' motions to alter or amend; denying
the post-trial motions for JNOV and/or a new trial absolute; requiring the jury to
allocate fault; declining to reduce the verdict pursuant to the statutory
noneconomic damages caps; and granting Wife's requested setoff allocation are

AFFIRMED.

THOMAS, J., and VERDIN, A.J., concur.