Foster v. Greenville Memorial Hospital System

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Tony Foster, Sr., and Belinda Keaton, as Personal Representatives of
the Estate of Tony Foster, Jr., (deceased),       
Appellants,

v.

Greenville Memorial Hospital System,       
Respondent.

Appeal From Greenville County

Joseph J. Watson, Circuit Court Judge

Unpublished Opinion No. 2004-UP-397

Submitted March 8, 2004 – Filed June
22, 2004

AFFIRMED

Fletcher N. Smith, Jr., of Greenvill, for Appellants.

Sarah S. Purnell, G. Dewey Oxner, Jr., of Greenville, for
Respondent.

PER CURIAM:  The estate of Tony Foster,
Jr. (the Estate) filed a wrongful death claim against the Greenville Memorial
Hospital System (Greenville Memorial).  The trial court granted Greenville Memorial’s
motion to dismiss, finding a prior judicial determination, that Greenville Memorial
was not negligent, barred the subsequent wrongful death claim.  The Estate appeals. 
We affirm. [1]

FACTS

In January 1992, four-year-old Tony
Foster, Jr., was brought into the Greenville Memorial emergency room suffering
from dizziness, vomiting, and diarrhea.  Although a CT scan was ordered upon
Tony’s admittance to the hospital, a delay in obtaining the CT scan led to
a delay in diagnosing him with hydrocephalus.  Tony subsequently sustained
severe neurological injuries and thereafter remained in a vegetative state.  
Tony’s mother, acting as his guardian ad litem, brought a medical
malpractice action in May 1993, arguing the doctors employed by Greenville
Memorial were negligent in failing to timely diagnose and treat Tony’s condition.
[2]   After the trial in November 1995, the jury returned a verdict for
Greenville Memorial.  This Court affirmed in Keaton v. Greenville Mem’l
Hosp., Op. No. 97-UP-379 (S.C. Ct. App. filed Aug. 28, 1997).  Our state
Supreme Court affirmed, as modified, this Court’s opinion and upheld the jury’s
verdict for Greenville Memorial.  Keaton v. Greenville Mem’l Hosp.,
334 S.C. 488, 514 S.E.2d 570 (1999). 

Tony died November 28, 1999, as a result
of his injuries.  The Estate filed a wrongful death action against Greenville
Memorial in October 2001, alleging negligence by Greenville Memorial’s employees
resulted in Tony’s injuries.  In its answer, Greenville Memorial denied the
allegations and affirmatively pled the defenses that the complaint failed
to state a cause of action pursuant to Rule 12(b)(6), SCRCP, and that the
case was barred by res judicata.  At the hearing on the motion to dismiss
pursuant to Rule 12(b)(6), SCRCP, Greenville Memorial informed the trial court
that the negligence issues had already been determined in the prior personal
injury case.

The trial court granted the motion based upon
several grounds.  The judge found the Estate’s complaint failed to state facts
sufficient to constitute a cause of action because it did not allege: (1)
that Tony died; (2) the date Tony died; or (3) that Greenville Memorial’s
negligence caused his death.  After considering information presented by Greenville
Memorial regarding the prior lawsuit, the trial court further found the instant
case was barred by both the wrongful death statute and the doctrine of collateral
estoppel.  The Estate appeals.

STANDARD OF REVIEW

The Estate appeals the trial court’s
decision to dismiss the complaint pursuant to Rule 12(b)(6), SCRCP.  However,
as in the present case, if the trial court considers matters outside the
complaint on a motion to dismiss pursuant to Rule 12(b)(6), SCRCP, “the
motion shall be treated as one for summary judgment and disposed of as provided
in Rule 56, and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56.”  Rule 12(b), SCRCP;
Gilbert v. Miller, 356 S.C. 25, 27, 586 S.E.2d 861, 862 (Ct. App.
2003) (holding that where the trial court considers matters outside the
pleadings the motion to dismiss is converted to one for summary judgment). [3]

LAW/ANALYSIS          

The Estate argues the trial court
erred in granting Greenville Memorial’s motion because “a prior determination
in a tort action does not bind nor bar a subsequent action for wrongful
death.”   We do not agree.

Section 15-51-10 of the wrongful death statute
provides:

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 (1977) (emphasis
added).

Section 15-51-60 of the wrongful
death statute addresses the effect of an action filed prior to the individual’s
death.  This section states the wrongful death statute “shall not apply
to any case in which the person injured has, for such injury, brought
action, which has proceeded to trial and final judgment before his or
her death.”  S.C. Code Ann. § 15-51-60 (1977). 

When interpreting these statutes, we must determine
the intent of the Legislature.  Hawkins v. Bruno Yacht Sales, Inc.,
353 S.C. 31, 39, 577 S.E.2d 202, 207 (2003) (“The cardinal rule of statutory
construction is to ascertain and effectuate the intent of the legislature.”). 
If the terms of the statute are clear, this Court must apply the terms
according to their plain and ordinary meaning.  Paschal v. State Election
Comm’n, 317 S.C. 434, 436, 454 S.E.2d 890, 892 (1995). 

Section 15-51-10 plainly states that a wrongful death
action may be filed on behalf of a deceased in cases where the deceased
would have been entitled to file a personal injury claim had he or she
not died.  Further, section 15-51-60 is clearly intended to prevent a
double recovery.  It excludes a right of action in the estate where the
deceased brought and tried an action to a final judgment during the deceased’s
lifetime.  As such, sections 10 and 60, when read together, stand for
the proposition that a judgment in a prior personal injury case extinguishes
the right to pursue a subsequent wrongful death claim.  Thus, as the Estate
would have been prohibited from retrying Tony’s personal injury case before
his death, it is prohibited from bringing such a suit at this time. 

Even interpreting the facts in the present
case in the light most favorable to the Estate, the Estate is barred by
statute from bringing the wrongful death action because Tony pursued a
personal injury action to final judgment during his lifetime.  As such,
the trial court did not err in granting summary judgment in favor of Greenville
Memorial.

The Estate, however, cites two
cases for the proposition that it was permitted to file both a personal
injury action and a wrongful death action.  In Bennett v. Spartanburg
Ry., Gas & Elec. Co., 97 S.C. 27, 81 S.E. 189 (1914), a husband
alleged two causes of action in his complaint: he brought a survival action
on both his behalf and the behalf of his children to recover for their
loss in the wrongful death of his wife; and an action to recover for wife’s
personal injuries and suffering.  Our state Supreme Court held the elements
of damages recoverable in the two causes of action were different, and
the cases should go forward in separate trials.  Bennett, 97 S.C.
at 30-31, 81 S.E. at 190. 

The Estate also cites Deaton
v. Gray Trucking Co., 275 F. Supp. 750 (D.S.C. 1967).  In Deaton,
three women were killed in a car accident.  The estate of the first woman,
Pamela, brought a wrongful death action wherein a verdict was rendered
in favor of the trucking company.  Subsequently, an action was filed on
behalf of the estates of all the women against the trucking company alleging
a survival action for Pamela and wrongful death actions for the other
two women.  Citing Bennett, the District Court for the District
of South Carolina held Pamela’s wrongful death suit was separate and distinct
from a survival action, and thus the prior judgment did not bar the survival
action.  The court also held that the prior suit did not bar the wrongful
death actions of the other women because it had not been previously litigated. 
The court denied the defendant’s motion for summary judgment.  Deaton,
275 F. Supp. at 753-56.

These cases do not support the
Estate’s argument in the present case.  Bennett discussed whether
a claim for the death of the decedent and a survival claim could be brought
in the same action.  Deaton dealt with whether a judgment in favor
of the defendant in a wrongful death cause of action barred a subsequent
survival action or subsequent wrongful death actions on behalf of the
estates of different decedents.  Although Deaton dealt with the
question of whether res judicata or collateral estoppel barred the wrongful
death suits on behalf of the estates of the other two decedents, neither
Deaton nor Bennett discussed whether a personal injury case
filed and ultimately decided during the decedent’s lifetime barred a subsequent
wrongful death claim for that same decedent.  Further, these cases were
decided prior to the enactment of the current version of the wrongful
death statute.  As such, the Estate’s argument has no merit. [4]  

CONCLUSION

Because section 15-51-10 read in conjunction
with section 15-51-60 mandates that a wrongful death action may not be
filed subsequent to the final determination of a personal injury action
filed during the decedent’s lifetime, the trial court did not err in granting
summary judgment to Greenville Memorial.  Thus, the trial court’s order
granting summary judgment to Greenville Memorial Hospital System is

AFFIRMED. [5]

HUFF and STILWELL, JJ. and CURETON,
AJ., concur.

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

[2] The Estate subsequently filed an amended complaint in August 1994.

[3] The Estate did not complain below and does not complain now on appeal
that the trial court improperly considered matters outside the complaint in
ruling on the motion to dismiss for failure to state a claim. 

[4] We note the Estate also argued the trial court erred in finding the
Estate’s complaint failed to state facts sufficient to constitute a cause
of action and in finding the cause of action was barred by collateral estoppel. 
However, as this case is barred by the wrongful death statute, it is not necessary
to reach the issues raised concerning the adequacy of the pleadings or collateral
estoppel.

[5] Although the parties and the trial court did not take notice that
the trial court’s consideration of matters outside the complaint converted
the motion to dismiss into one for summary judgment, we may affirm the grant
of summary judgment based on the Record.  Rule 220(c), SCACR (“The appellate
court may affirm any ruling, order, or judgment based upon any ground(s) appearing
in the Record on Appeal.”).