744 S.E.2d 547
S.C.2013Background
- Plaintiff John Ross served a Notice of Intent to file a medical-malpractice suit on Nov. 25, 2008, triggering the statutory pre-suit mediation process under S.C. Code § 15-79-125.
- The statute requires mediation within 90–120 days of service, with a possible 60-day court-granted extension; it is silent on the consequences of missing the deadline and incorporates the SCADRR.
- Mediation was scheduled twice inside the 120-day window but, after counsel scheduling conflicts, was rescheduled by agreement for May 20, 2009 — after the 120-day period (but within the possible 60-day extension); no court extension was requested.
- Six days before the May mediation, defendants refused to participate, arguing the missed 120-day deadline divested the circuit court of subject-matter jurisdiction and required dismissal of the Notice of Intent (and the unfiled complaint).
- Plaintiff moved to compel mediation; defendants moved to dismiss under Rule 12(b)(1). The trial court granted dismissal and denied the motion to compel; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to complete statutorily timed pre-suit mediation within 120 days divests the circuit court of subject-matter jurisdiction and mandates dismissal | Ross: § 15-79-125’s 120-day rule is procedural, not jurisdictional; the court retains authority to enforce mediation and should compel mediation; dismissal is not required and would frustrate legislative intent | Defs: The 120-day deadline is jurisdictional; absent a court-granted 60-day extension, the Notice of Intent expires and the circuit court loses jurisdiction, requiring dismissal | Court: The 120-day deadline is a non-jurisdictional procedural requirement; failure to meet it does not divest subject-matter jurisdiction; dismissal is not mandatory and the court may compel or permit mediation beyond the deadline, applying SCADRR and equitable doctrines like waiver/estoppel |
Key Cases Cited
- Grier v. AMISUB of S.C., 397 S.C. 532 (2012) (statutory interpretation and rule that courts must effectuate legislative intent)
- Skinner v. Westinghouse Elec. Corp., 380 S.C. 91 (2008) (procedural time limits do not affect circuit court’s general power to hear cases)
- Mende v. Conway Hosp., Inc., 304 S.C. 313 (1991) (waiver/estoppel can excuse procedural noncompliance when parties’ conduct warrants it)
- Schulz v. Nienhuis, 152 Wis.2d 434 (1989) (pre-suit mediation statute: failure to meet statutory mediation period does not require dismissal; modern law disfavors dismissal on technical grounds)