763 S.E.2d 200
S.C.2014Background
- Brouwer filed a Notice of Intent to File Suit (NOI) and complaint for medical malpractice against the Hospital and related defendants after a latex-allergy-related intraoperative reaction during uvulopalatopharyngoplasty.
- Brouwer did not attach an expert affidavit with the NOI, asserting the claim lies within common knowledge and experience.
- Circuit court initially denied dismissal, applying the common-knowledge exception in 15-36-100(C)(2) but later dismissed the complaint without prejudice.
- Ranucci I (Ct. App.) held that 15-79-125(A) invokes only 15-36-100 provisions governing affidavits, potentially limiting the common-knowledge exception for NOI.
- This Court later overruled Ranucci I, holding that 15-79-125 incorporates 15-36-100 in full, including the common-knowledge exception, making the NOI potentially sufficient without an affidavit.
- Brouwer’s factual allegation—latex exposure in a patient with known latex allergy could cause an allergic reaction—was found to lie within common knowledge, excusing the need for an expert affidavit at the pre-litigation stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of common-knowledge exception to NOI. | Brouwer argues 15-79-125(A) incorporates 15-36-100 in full, so the common-knowledge exception applies to the NOI. | Respondents argue Ranucci I controls, limiting application of the common-knowledge exception to the NOI. | Yes; common-knowledge exception may apply to NOI; overruled Ranucci I. |
| Whether Brouwer’s alleged latex allergy exposure falls within common knowledge. | Brouwer maintains the latex-allergy exposure is a matter of common knowledge. | Respondents contend the claim requires expert proof unless common knowledge applies. | Yes; the alleged act falls within common knowledge, removing the need for an expert affidavit. |
| Effect on the case’s viability and tolling under 15-79-125(A). | No affidavit required means NOI satisfies pre-litigation requirements and tolling applies. | If NOI is deficient, case should be dismissed; mediation does not cure NOI defects. | NOI suffices under tolling; case remains viable. |
Key Cases Cited
- Green v. Lilliewood, 272 S.C. 186 (1978) (common-knowledge concept acknowledged in medical malpractice)
- Thomas v. Dootson, 377 S.C. 293 (Ct.App.2008) (surgical-drill injury claim treated as common-knowledge)
- Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164 (Ct.App.1988) (evidence may allow inference of breach without expert testimony)
- Dawkins v. Union Hosp. Disk, 408 S.C. 171 (2014) (distinguishes medical malpractice from ordinary negligence; expert testimony typically required)
- Carver v. Med. Soc’y of S.C., 286 S.C. 347 (Ct.App.1985) (common-knowledge exception for evaluating standard of care)
- Ranucci v. Crain, 409 S.C. 493 (S.C.Sup.Ct. 2014) (initial ruling that 15-79-125(A) invokes only 15-36-100; later overruled by the supreme court)