South Carolina Supreme Court Interprets Statute of Repose – Health Law and Regulation Update Post by Skyler Wilson
Health Law and Regulation Update Post by Skyler Wilson.
The South Carolina Supreme Court interpreted South Carolina’s statute of repose applicable to medical malpractice actions, which requires an action to be commenced within “six years from [the] date of occurrence,” and, in a split decision, found the statute begins to run after each occurrence rather than the first occurrence.
In Marshall v. Dodds, Marshall was treated multiple times by Dr. Dodds over the course of many years, beginning in July 1999 and ending in September 2005. In July 1999 Marshall presented to Dr. Dodds and Dr. Dodds noted elevated protein levels in Marshall’s urine but failed to run a test that would have shown that the protein was cancerous. Over the course of Dr. Dodds’ treatment of Marshall, he repeatedly noted the increased protein levels but never ran the test to determine if the protein was cancerous. The last time Dr. Dodds treated Marshall was in September 2005. In February 2010, Marshall was diagnosed with a rare type of blood cancer. In February 2011, Marshall sued Dr. Dodds and another doctor for a failure to diagnose.
Defendants’ argued that the statute of repose began to run in July 1999 when Dr. Dodds first failed to diagnose Marshall with cancer, requiring Marshall to file suit by July 2005. Because suit was not filed until February 2011, Marshall’s claims were time barred. The South Carolina Supreme Court disagreed. The Court interpreted the statute, which it noted stated “occurrence” and not “first occurrence,” and determined that each time Dr. Dodds treated Marshall and failed to diagnose her, it was an “occurrence” under the statute. Because suit was filed in February 2011, Marshall could maintain claims for any occurrences from up to six years prior, February 2005. The last time Dr. Dodds treated Marshall and failed to diagnose her was in September 2005. Accordingly, Marshall could maintain an action for those damages occurring within the statute of repose, but not for those occurring outside the statute of repose.
Take-home: If a practitioner fails to diagnose a patient on multiple occasions, both within and outside of the statute of repose, that patient is not time barred from bringing an action for damages. The patient, however, can only recover for those damages occurring within the statute of repose.
The case is Marshall v. Dodds, Case No. 27873 (S.C. Sup. Ct. filed March 27, 2019).
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