Eades v. Palmetto Cardiovascular

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

Johnny Eades and Barbara Eades, Appellants,

v.

Palmetto Cardiovascular and Thoracic, PA; James M.
Benner, MD; Mark J. Epler, MD; Trident Medical
Center, LLC; Columbia/HCA Healthcare Corporation of
South Carolina; HCA Healthcare-South Carolina; Trident
Medical Center; Trident Health System; Palmetto
Primary Care Physicians, LLC; Trident Emergency
Physicians, LLC; Brian R. Whirreth, MD; Patricia
Campbell, MD; Christine E. McNeal, MD; Matthew
Wallen, MD; Charleston Radiologists, PA; Joseph M.
Mullaney, MD; Tri-County Radiology Associates, PA;
and Troy Marlon, MD, Defendants,

Of whom Palmetto Cardiovascular and Thoracic, PA;
James M. Benner, MD; Mark J. Epler, MD; Palmetto
Primary Care Physicians, LLC, and Trident Emergency
Physicians, LLC are the Respondents.

Appellate Case No. 2013-002177

Appeal From Charleston County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2015-UP-331
Submitted April 1, 2015 – Filed July 1, 2015
REVERSED AND REMANDED

Gary Lane Cartee, of North Charleston, for Appellants.

Hutson S. Davis, Jr., and Jason Wayne Ward, both of
Ward & Bromley, LLC, of Bluffton, for Respondent
Mark J. Epler.

Thomas C. Salane and R. Hawthorne Barrett, both of
Turner Padget Graham & Laney, PA, of Columbia, for
Respondent Palmetto Primary Care Physicians, LLC.

Donald Jay Davis, Jr., Stephen Lynwood Brown, and
Russell Grainger Hines, all of Young Clement Rivers, of
Charleston, for Respondent Trident Emergency
Physicians, LLC.

William Curry McDow, of Richardson Plowden &
Robinson, PA, of Columbia, for Respondents Palmetto
Primary Care Physicians, LLC and Trident Emergency
Physicians, LLC.

R. Hawthorne Barrett, of Turner Padget Graham &
Laney, PA, of Columbia, for Respondent Trident
Emergency Physicians, LLC.

Andrew F. Lindemann, of Davidson & Lindemann, PA,
of Columbia, for Respondents Palmetto Cardiovascular
and Thoracic, James M. Benner, and Mark J. Epler.

Darren Kent Sanders, of Buyck, Sanders & Simmons,
LLC, of Mount Pleasant, for Respondents Palmetto
Cardiovascular and Thoracic and James M. Benner.

PER CURIAM: Johnny and Barbara Eades appeal the trial court's dismissal of
their notice of intent to file suit (NOI). The Eadeses argue the trial court erred in
dismissing their lawsuit on the ground that they failed to contemporaneously file
an affidavit of an expert witness with their NOI. We reverse and remand for
further proceedings. See S.C. Code Ann. § 15-79-125(A) (Supp. 2014) ("Prior to
filing or initiating a civil action alleging injury or death as a result of medical
malpractice, the plaintiff shall contemporaneously file [a NOI] and an affidavit of
an expert witness, subject to the affidavit requirements established in Section 15-
36-100 . . . ."); S.C. Code Ann. § 15-36-100(C)(1) (Supp. 2014) ("The
contemporaneous filing requirement . . . does not apply to any case in which the
period of limitation will expire, or there is a good faith basis to believe it will
expire on a claim stated in the complaint, within ten days of the date of filing and,
because of the time constraints, the plaintiff alleges that an affidavit of an expert
could not be prepared. In such a case, the plaintiff has forty-five days after the
filing of the complaint to supplement the pleadings with the affidavit."); Ranucci v.
Crain, 409 S.C. 493, 504, 763 S.E.2d 189, 194 (2014) ("[S]ection 15–79–125(A)'s
reference to the 'affidavit requirements established in [s]ection 15–36–100'
constitutes an adoption of all provisions of section 15–36–100."); id. at 509, 763
S.E.2d at 197 ("Having found that section 15–79–125 incorporates section 15–36–
100 in its entirety, we hold that [plaintiff] should have been permitted to invoke
section 15–36–100(C)(1), which extended the time for filing the expert witness
affidavit and tolled the applicable statute of limitations under section 15–79–
125(A).").1

REVERSED AND REMANDED.2

SHORT, LOCKEMY, and McDONALD, JJ., concur.

1
We note that the issue of the sufficiency of the expert affidavit as to Respondents
is unpreserved. See S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C.
295, 301, 641 S.E.2d 903, 907 (2007) (providing an issue must be raised to and
ruled upon by the trial court to be preserved for appellate review).
2
We decide this case without oral argument pursuant to Rule 215, SCACR.