Bennett v. Lexington County Health Services District

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

Tanya Bennett, as next friend of Mykelvion T., a minor,
Appellant,

v.

Lexington County Health Services District, Inc. d/b/a
Lexington Medical Center, Respondent.

Appellate Case No. 2013-001410

Appeal From Lexington County
Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2015-UP-305
Heard May 13, 2015 – Filed June 24, 2015

AFFIRMED

Edward L. Graham and John Layton Ruffin, both of
Graham Law Firm, P.A., of Florence, for Appellant.

Weldon R. Johnson, Matthew Gregory Gerrald, and
Emily Collins Brown, all of Barnes, Alford, Stork &
Johnson, LLP, of Columbia, for Respondent.
PER CURIAM: In this medical malpractice action, Appellant Tanya Bennett
(Mother) challenges the circuit court's order granting summary judgment to
Respondent Lexington County Health Services District, Inc., d/b/a Lexington
Medical Center, on the ground that the action was barred by the statute of
limitations. We affirm.

Mother's first assignment of error is the circuit court's conclusion that a minor's
claim under the South Carolina Tort Claims Act (the Act)1 is not subject to "the
discovery rule." While the circuit court erred in this respect, the error is not
reversible.

Initially, we note the phrase "the discovery rule," standing alone, can be misleading
because certain statutes of limitations have their own built-in discovery rules.2
One of these statutes is the statute of limitations for actions brought under the Act,

1
S.C. Code Ann. §§ 15-78-10 to -220 (2005 & Supp. 2014).
2
See S.C. Code Ann. § 15-78-110 (2005) ("Except as provided for in [s]ection 15-
3-40 [of the South Carolina Code (2005)], any action brought pursuant to [the Act]
is forever barred unless an action is commenced within two years after the date the
loss was or should have been discovered . . . ." (emphasis added)); S.C. Code Ann.
§ 15-3-530(7) (2005) (stating certain fraud claims are "not considered to have
accrued until the discovery by the aggrieved party of the facts constituting the
fraud"); S.C. Code Ann. § 15-3-530(9) (2005) (stating certain actions against
directors or stockholders of a "monied corporation" or a banking association do not
accrue "until the discovery by the aggrieved party of the facts upon which the
penalty or forfeiture attached or the liability was created, unless otherwise
provided in the law under which the corporation is organized"); S.C. Code Ann. §
15-3-545(A) (2005) (requiring most medical malpractice actions to be
"commenced within three years from the date of the treatment, omission, or
operation giving rise to the cause of action or three years from date of discovery or
when it reasonably ought to have been discovered"); Santee Portland Cement Co.
v. Daniel Int'l Corp., 299 S.C. 269, 272, 384 S.E.2d 693, 694-95 (1989)
(discussing Gattis v. Chavez, 413 F. Supp. 33, 39 (D.S.C. 1976), and tracing the
history of the statutory and judicially-created discovery rules), overruled on other
grounds by Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors Div. of
Unidynamics Corp., 319 S.C. 556, 462 S.E.2d 858 (1995); id. at 272, 384 S.E.2d at
695 ("Section 15-3-545 created a special 'discovery rule' for medical malpractice
actions.").
which is set forth in section 15-78-110 and states, in pertinent part, "Except as
provided for in [s]ection 15-3-40, any action brought pursuant to [the Act] is
forever barred unless an action is commenced within two years after the date the
loss was or should have been discovered . . . ." (emphasis added). "Loss" is
defined in the Act as follows:

bodily injury, disease, death, or damage to tangible
property, including lost wages and economic loss to the
person who suffered the injury, disease, or death, pain
and suffering, mental anguish, and any other element of
actual damages recoverable in actions for negligence, but
does not include the intentional infliction of emotional
harm.

S.C. Code Ann. § 15-78-30(f).

This court previously applied the discovery rule under section 15-3-535 of the
South Carolina Code (2005) to determine when a cause of action arising under the
Act accrues. See Logan v. Cherokee Landscaping & Grading Co., 389 S.C. 611,
617-18, 698 S.E.2d 879, 883 (Ct. App. 2010); Bayle v. S.C. Dep't of Transp., 344
S.C. 115, 123, 542 S.E.2d 736, 740 (Ct. App. 2001); Joubert v. S.C. Dep't of Soc.
Servs., 341 S.C. 176, 190, 534 S.E.2d 1, 8 (Ct. App. 2000) (citing Barr v. City of
Rock Hill, 330 S.C. 640, 643-46, 500 S.E.2d 157, 159-60 (Ct. App. 1998)).
Section 15-3-535 states, "Except as to actions initiated under [s]ection 15-3-545,
all actions initiated under [s]ection 15-3-530(5) must be commenced within three
years after the person knew or by the exercise of reasonable diligence should have
known that he had a cause of action." While the date a possible "cause of action"
should have been discovered will not always be the same as the date "the loss"
should have been discovered (the date of accrual under section 15-78-110),3 these
two dates are identical in the present case.

3
Cf. Epstein v. Brown, 363 S.C. 372, 376, 610 S.E.2d 816, 818 (2005) ("Under
[section] 15-3-535, the statute of limitations is triggered not merely by knowledge
of an injury but by knowledge of facts, diligently acquired, sufficient to put an
injured person on notice of the existence of a cause of action against another."
(emphases added)).
For purposes of determining the date of accrual under section 15-3-535, we find
Dean v. Ruscon Corp., 321 S.C. 360, 468 S.E.2d 645 (1996), to be instructive. In
Dean, our supreme court set forth a specific standard on what constitutes the
exercise of reasonable diligence in discovering the existence of a cause of action:

We have interpreted the "exercise of reasonable
diligence" to mean that the injured party must act with
some promptness where the facts and circumstances of
an injury place a reasonable person of common
knowledge and experience on notice that a claim against
another party might exist. Moreover, the fact that the
injured party may not comprehend the full extent of the
damage is immaterial.

Id. at 363-64, 468 S.E.2d at 647 (second and third emphases added) (citation
omitted).

In other words, the discovery rule does not "require absolute certainty a cause of
action exists before the statute of limitations begins to run." Bayle, 344 S.C. at
126, 542 S.E.2d at 741. The statute begins to run from the point that the "facts and
circumstances of an injury would put a person of common knowledge and
experience on notice that some right of his has been invaded or that some claim
against another party might exist" and "not when advice of counsel is sought or a
full-blown theory of recovery developed." Epstein, 363 S.C. at 376, 610 S.E.2d
at 818.

Further, the plaintiff need not know that his injury is permanent to be on notice he
might have a claim against another party. In Young v. South Carolina Department
of Corrections, this court held that the plaintiff

was not required to know the sight in his right eye was
permanently lost to be put on notice the Department of
Corrections had caused him injury through the delay in
diagnosis and treatment. When he was told of the scar
tissue by two separate doctors, who both displayed
concern over the delay in diagnosis and treatment, Young
discovered or should have discovered potential damage
to his sight.
333 S.C. 714, 721, 511 S.E.2d 413, 417 (Ct. App. 1999) (second emphasis added);
see also Knox v. Greenville Hosp. Sys., 362 S.C. 566, 571-72, 608 S.E.2d 459,
462-63 (Ct. App. 2005) (holding a "reasonably diligent person of common
knowledge and experience, under the admitted facts, would have been aware"
when a nurse improperly inserted an intravenous needle into the plaintiff's wrist
"that a claim against the [h]ospital might exist, even though the full extent of the
injury was only subsequently discovered." (emphasis added)).

Here, according to Mother's deposition, Dr. Augustine stated "Oops, I hurt his
arm" immediately after he delivered Mother's son (Child) on July 23, 2001. The
next day, Dr. Augustine checked on Mother and commented on Child's arm injury:
"Injuries like this one usually heal fully in about two weeks[.]" However, two
weeks later, Child's arm was no better than it was when he was delivered. Given
Dr. Augustine's attribution of Child's arm injury to the way he delivered Child, i.e.,
"Oops, I hurt his arm," and his assurance that an injury of this type usually heals
within two weeks, a reasonable person of common knowledge would have
discovered that a claim against Respondent might exist the day after this two-week
period expired. This day is also the day Mother should have discovered the "loss"
for purposes of applying the language of section 15-78-110, i.e., "[A]ny action
brought pursuant to [the Act] is forever barred unless an action is commenced
within two years after the date the loss was or should have been discovered."
(emphasis added).

Because Dr. Augustine delivered Child on July 23, 2001, Mother should have
discovered that Child suffered a loss or might have a claim against Respondent on
August 7, 2001, two weeks and one day after Child's delivery. Taking into
consideration section 15-3-545(D), which contains a seven-year tolling provision
for minors, the two-year statute of limitations would have expired on August 7,
2010, well before the present action was filed on June 17, 2011. Even if we
consider the accrual date to be December 5, 2001, when Dr. Gilpin informed
Mother that Child's "particular deficit was indicative of marginal recovery," the
statute of limitations would have expired on December 5, 2010. Likewise,
considering an accrual date of January 11, 2002, the date Mother saw an attorney
"to inquire about the brachial plexus injuries to see if there was anything that [she]
could actually do,"4 the statute of limitations would have expired on January 11,
2011.

We appreciate Mother's argument that Dr. Redmond indicated it could not be
known whether Child's injury would be permanent until he was approximately
eighteen to twenty-four months of age. However, our jurisprudence on the
discovery rule does not allow a plaintiff to wait until she is certain the injury is
permanent to file suit. Rather, Mother was on notice that Child suffered a loss or
might have a claim against Respondent after the two-week recovery period
referenced by Dr. Augustine had expired or, at the latest, when she consulted with
an attorney on January 11, 2002.

Mother also argues that filing "some medical negligence birth injury cases in the
first two years is a near impossibility" in light of South Carolina's physician
affidavit requirement for filing a medical malpractice action. Mother further states,
"[I]t would be impossible or exceptionally difficult to secure an affidavit during the
child's first year or two of life substantiating medical malpractice when the injury
may ultimately prove to be temporary, [as] temporary injuries can occur without
medical negligence." However, Mother had at least nine years after Child's birth
within which to file an action on Child's behalf, giving her plenty of time after
Child reached twenty-four months of age to obtain the requisite physician affidavit
before filing suit.

Mother's second assignment of error is the circuit court's imputation of Mother's
knowledge to Child in applying the discovery rule. We find no error in this
regard.5 We find the language of the seven-year tolling provision for minors set
forth in section 15-3-545(D) to be instructive on this question:

4
Mother signed a medical records release authorizing her and Child's medical
providers to send this attorney information regarding her treatment. Mother did
not make any return visits to this attorney, but she signed another medical records
release on January 25, 2006, authorizing a second law firm to obtain her medical
records. Again, on November 18, 2010, Mother signed a form authorizing present
counsel to obtain Child's medical records.
5
The circuit court's order granting summary judgment did not expressly address
Mother's argument regarding imputation of knowledge to Child; however, we
interpret the order as implicitly rejecting this argument. Therefore, it was
unnecessary for Mother to file a Rule 59(e), SCRCP, motion to preserve the issue
Notwithstanding the provisions of [s]ection 15-3-40, if a
person entitled to bring an action against a licensed
health care provider acting within the scope of his
profession is under the age of majority at the date of the
treatment, omission, or operation giving rise to the cause
of action, the time period or periods limiting filing of the
action are not tolled for a period of more than seven years
on account of minority, and in any case more than one
year after the disability ceases. Such time limitation is
tolled for minors for any period during which [a] parent
or guardian and defendant's insurer or health care
provider have committed fraud or collusion in the failure
to bring an action on behalf of the injured minor.

(emphases added).

The last sentence in section 15-3-545(D) indicates the legislature specifically
provided extra protection to a minor in those circumstances in which a parent has
purposely failed to bring an action on his behalf. The logical extension of this
provision is that the parent's knowledge of facts indicating the minor has suffered a
loss or might have a cause of action cannot be imputed to the minor during the
period of fraud or collusion. In turn, this implies that in all other circumstances,
the parent's knowledge is imputed to a minor for purposes of the discovery rule.
See Hodges v. Rainey, 341 S.C. 79, 86, 533 S.E.2d 578, 582 (2000) ("The canon of
construction 'expressio unius est exclusio alterius' or 'inclusio unius est exclusio
alterius' holds that 'to express or include one thing implies the exclusion of
another, or of the alternative.'"); id. at 87, 533 S.E.2d at 582 ("'The enumeration of
exclusions from the operation of a statute indicates that the statute should apply to

for appeal. Cf. Platt v. CSX Transp., Inc., 388 S.C. 441, 446, 697 S.E.2d 575, 578
(2010) (holding the appellant did not properly preserve the issue of a common law
duty for appellate review because the trial court did not rule on that issue and the
appellant did not file a motion to alter or amend the judgment). Further, we are not
prohibited from addressing this issue by Mother's failure to list it in her Statement
of Issues on Appeal. See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will
be considered [that] is not set forth in the statement of the issues on appeal."
(emphasis added)).
all cases not specifically excluded. Exceptions strengthen the force of the general
law and enumeration weakens it as to things not expressed.'").

Mother's third assignment of error is the circuit court's failure to conclude the
proper discovery date was a question of fact for the jury. We find no error.

The burden of establishing the bar of the statute of
limitations rests upon the one interposing it, and when
the testimony is conflicting upon the question, it becomes
an issue for the jury to decide. However, when there is
no conflicting evidence or only one reasonable inference
can be drawn from the evidence, the determination of
when a party knew or should have known that he or she
had a claim becomes a matter of law to be decided by the
trial court.

Turner v. Milliman, 381 S.C. 101, 110, 671 S.E.2d 636, 641 (Ct. App. 2009)
(citation omitted), aff'd in part, rev'd in part on other grounds, 392 S.C. 116, 708
S.E.2d 766 (2011).

Here, only one reasonable inference could be drawn from the evidence: the day
after the two-week recovery period referenced by Dr. Augustine expired was the
date that either (1) Mother should have discovered the "loss" for purposes of
section 15-78-110 or (2) "the facts and circumstances of [Child's] injury would put
a person of common knowledge and experience on notice that some right of his
ha[d] been invaded or that some claim against another party might exist." Epstein,
363 S.C. at 376, 610 S.E.2d at 818. Therefore, the circuit court properly
determined the accrual date for Child's cause of action against Respondent as a
matter of law, and the grant of summary judgment is

AFFIRMED.6

THOMAS, KONDUROS, and GEATHERS, JJ., concur.

6
We decline to address Respondent's additional sustaining grounds.