Angela Patton v. Dr. Gregory A. Miller (2)

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

Angela Patton, as Next Friend of Alexia L., a minor,
Respondent,

v.

Dr. Gregory A. Miller and Rock Hill Gynecological &
Obstetrical Associates, P.A., Appellants.

Appellate Case No. 2022-000288

Appeal From York County
William A. McKinnon, Circuit Court Judge

Unpublished Opinion No. 2025-UP-253
Heard June 3, 2025 – Filed July 23, 2025

AFFIRMED

C. Mitchell Brown, of Nelson Mullins Riley &
Scarborough, LLP, of Columbia, and Ashby W. Davis, of
Davis and Snyder, P.A., of Greenville, both for
Appellants.

Edward L. Graham, of Graham Law Firm, P.A., of
Pendleton, and David Bradley Jordan, of Jordan Law
Firm, P.C., of Rock Hill, both for Respondent.
PER CURIAM: This dispute arises out of a claim for medical malpractice during
the delivery of a child. Dr. Gregory Miller and his practice were the defendants
below and are the appellants here. For ease of reference, we refer to both as "Dr.
Miller." Dr. Miller contends he is entitled to a new trial because the circuit court
erred in denying his mid-trial motion to amend his pleadings to add a statutory
defense. Dr. Miller made the motion to amend after Respondent Angela Patton
rested her case. Dr. Miller also asserts he is entitled to a new trial because the trial
judge allegedly erred in not recusing himself from the case. We respectfully disagree
with both arguments and affirm.

STANDARD OF REVIEW

"The decision whether to allow the amendment of pleadings to conform to the
evidence is left to the sound discretion of the trial court." Dunbar v. Carlson, 341
S.C. 261, 266, 533 S.E.2d 913, 916 (Ct. App. 2000). "The trial judge's finding will
not be overturned without an abuse of discretion or unless manifest injustice has
occurred." Berry v. McLeod, 328 S.C. 435, 450, 492 S.E.2d 794, 802 (Ct. App.
1997). "An abuse of discretion occurs when the trial court's ruling is based on an
error of law or, when grounded in factual conclusions, is without evidentiary
support." Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000).

"Under South Carolina law, if there is no evidence of judicial prejudice, a judge's
failure to disqualify himself will not be reversed on appeal." Patel v. Patel, 359 S.C.
515, 524, 599 S.E.2d 114, 118 (2004).

MOTION TO AMEND

Dr. Miller contends the circuit court erred in denying his Rule 15(b), SCRCP, motion
to amend to add a statutory emergency defense under section 15-32-230(A) of the
South Carolina Code (Supp. 2024). When ruling on the motion, the circuit court
explained that it was unreasonable to allow Dr. Miller to amend his pleadings in a
way that would potentially change the burden of proof while the parties were in the
second week of trial, after Respondent concluded her case. We agree.

Rule 15(b), SCRCP, allows a party to amend his or her pleadings to conform to the
evidence "if an issue not raised by the pleadings is tried by express or implied
consent of the parties." Dunbar, 341 S.C. at 266–67, 533 S.E.2d at 916 (quoting
Sunvillas Homeowners Ass'n., v. Square D Co., 301 S.C. 330, 334, 391 S.E.2d 868,
871 (Ct. App. 1990)). "Although the spirit of the modern procedural rules is to
promote pleading flexibility to ensure disputes are decided on their merits rather than
the whims of formalism, Rule 15(b) reminds us that pleading is not altogether
formless, and issues cannot enter a trial by stealth." Northwest Props., LLC v.
Strebler, 424 S.C. 617, 626, 819 S.E.2d 154, 159 (Ct. App. 2018). "[I]f late
amendment of the pleadings would cause prejudice to the opposing party, the court
should either deny the amendment or grant a continuance reasonably necessary to
allow the opposing party to meet the amendment." Ball v. Canadian AM. Exp. Co.,
314 S.C. 272, 275, 442 S.E.2d 620, 622 (Ct. App. 1994). "Prejudice occurs when
the amendment states a new claim or defense which would require the opposing
party to introduce additional or different evidence to prevail in the amended action."
Id.

We recognize that this trial included extensive testimony that shoulder dystocia is
an obstetrical emergency; however, the record plainly shows that neither party
attempted to present or develop expert testimony on whether Dr. Miller was grossly
negligent. See § 15-32-230(A) (providing a statutory obstetrical emergency defense
that requires a finding of gross negligence before liability can be imposed on a
physician). The relevant testimony leading up to Dr. Miller's motion to amend
focused almost exclusively on whether Dr. Miller's treatment conformed to the
degree of care and skill employed by an ordinarily careful and prudent physician
under similar circumstances. We respectfully disagree with Dr. Miller's argument
that the statute at issue here, and particularly the issue of gross negligence, was tried
by consent. Neither party offered testimony targeting the issues in the statute beyond
whether shoulder dystocia was an emergency. Again, we interpret the relevant
testimony as being targeted to the general standard of care rather than the issues
related to the requested statutory defense.

In Dunbar, the defendant questioned the plaintiff's daughter "extensively about her
mother's health and the time frame for her various illnesses." 341 S.C. at 268, 533
S.E.2d at 917. The plaintiff did not object to the questions or the daughter's
subsequent testimony. Id. at 267, 533 S.E.2d at 916. The plaintiff "rested her case
after this testimony." Id. at 265, 533 S.E.2d at 915. Based on the daughter's answers
to his questions, the defendant "then moved to amend his answer to allege the
defenses of the statute of repose and the statute of limitations and for a directed
verdict on those grounds." Id. The circuit court in that case granted the "motion as
to the statute of limitations and granted a directed verdict to [the defendant] on that
ground." Id. On appeal, this court found that the statute of limitations was not tried
by implied consent because questions regarding the timing of the illnesses were
admissible for another purpose, to establish proximate cause, and thus it appeared
the plaintiff would not have recognized an intent to assert a statute of limitations
defense. Id. at 268, 533 S.E.2d at 917.
As previously mentioned, the relevant part of section 15-32-230(A) requires gross
negligence before liability can be imposed on a physician if there is a genuine
emergency in an obstetrical suite. § 15-32-230(A) ("In an action involving a medical
malpractice claim arising out of care rendered in a genuine emergency situation
involving an immediate threat of death or serious bodily injury to the patient
receiving care in an emergency department or in an obstetrical or surgical suite, no
physician may be held liable unless it is proven that the physician was grossly
negligent."). Like the testimony regarding the statute of limitations in Dunbar, the
testimony regarding the existence of an obstetrical emergency was admissible for
other purposes and did not point conclusively to the statutory defense Dr. Miller
claims was tried by consent. The parties used this testimony to establish the general
facts and circumstances Dr. Miller faced during the delivery. Also like the defendant
in Dunbar, Dr. Miller obtained a directed verdict on gross negligence after
Respondent rested her case and immediately afterwards attempted to assert the
emergency statute as an affirmative defense. Like the court in Dunbar, we find that
allowing this amendment after Respondent rested would have been manifestly
prejudicial because Respondent's lawsuit would no longer be viable if the jury found
there was a genuine emergency. Dunbar, 341 S.C. at 267, 533 S.E.2d at 916 ("The
prejudice to Dunbar is patent in that the trial judge granted a directed verdict against
Dunbar immediately after permitting Carlson's amendment."). This is especially
true when Dr. Miller obtained a directed verdict on the issue of gross negligence
immediately before moving to amend his answer to assert the affirmative defense.

We take Dr. Miller's point that everyone was aware of the potential for this statute
to become an issue in this case, and that if the decision denying the motion to amend
stands, it makes no sense for the case to have been stayed while other cases involving
the statute worked through the appellate process. This is a strong argument, but it is
meaningfully countered by the fact that the burden fell on Dr. Miller to amend his
pleadings if he wanted to make the defense an actual issue in the case as opposed to
a potential issue. By waiting until after Respondent rested, Dr. Miller raised a risk
of prejudice that would not have been present if the motion had been made earlier.

Therefore, the circuit court did not abuse its discretion in finding the amendment
would be unfairly prejudicial to Respondent. See Ball, 314 S.C. at 275, 442 S.E.2d
at 622 ("Prejudice occurs when the amendment states a new claim or defense which
would require the opposing party to introduce additional or different evidence to
prevail in the amended action.").

RECUSAL
Dr. Miller claims the circuit court judge erred in failing to recuse himself because
the judge had previously litigated medical malpractice cases when he was in private
practice. We respectfully disagree and find the record does not contain evidence
establishing judicial bias, which is required for reversal.

"Pursuant to Canon 3(E)(1)(a) of Rule 501, SCACR, a judge should disqualify
himself or herself in a proceeding in which the judge's impartiality might reasonably
be questioned." State v. Jackson, 353 S.C. 625, 627, 578 S.E.2d 744, 745 (Ct. App.
2003). "It is not enough for a party seeking disqualification to simply allege bias or
prejudice. The party must show some evidence of that bias or prejudice." Id. "If
there is no evidence of judicial bias or prejudice, a judge's failure to disqualify
himself will not be reversed on appeal." Id.; see also Simpson v. Simpson, 377 S.C.
519, 534, 660 S.E.2d 274, 277 (Ct. App. 2008) ("When an appellant offers no
evidence to support his claim of partiality, the trial judge is correct to deny a Motion
for Recusal.").

Specifically, Dr. Miller argues the trial judge should have recused himself because
while he was a partner at his former firm, the judge's law partners litigated a medical
malpractice claim arising from allegedly negligent obstetrical care against the same
medical practice while Dr. Miller was a partner there. These are not grounds for
recusal, especially when the judge's former law firm was not involved in this case.
See Jackson, 353 S.C. at 627, 578 S.E.2d at 745 (affirming the denial of a motion
for recusal because "[t]he fact that the trial judge in this case was a deputy solicitor
at the time Jackson allegedly committed the crime did not automatically warrant his
recusal from the case without more"); see also Simpson, 377 S.C. at 521–26, 660
S.E.2d at 276–78 (finding the trial judge was not required to recuse herself in a
divorce proceeding when wife's counsel had tried an unrelated personal injury case
with the judge's husband's law partner and that law partner had testified on behalf of
husband's parents in a prior divorce action). When ruling on the motion, the judge
here stated, "I don't ever recall having contact with Dr. Miller either as an expert in
one of my cases or ever having worked a case against that medical practice." Dr.
Miller's counsel confirmed that the judge's recollection was correct. Therefore, we
find the circuit court appropriately denied the motion for recusal because there was
no evidence of judicial bias or prejudice.

Dr. Miller argues the decision denying his motion to amend his answer constitutes
evidence of bias. Given our conclusion that the motion to amend was properly
denied, we maintain the view that the record contains no evidence of judicial bias.
For these reasons, the circuit court's judgment is
AFFIRMED.

THOMAS, HEWITT, and CURTIS, JJ., concur.