South Carolina

South Carolina Supreme Court Decides that a Surgeon Is Qualified to Testify About a Primary Care Physician’s Negligence

Written on Tuesday, August 28th, 2018 by T.C. Kelly
Filed under: Expert Opinions

Like many states, South Carolina law requires the plaintiff in a medical malpractice case to obtain an affidavit from a qualified expert, before filing suit, explaining how the defendant physician breached the applicable standard of care. Many states so narrowly define the required qualifications of an expert that it has become difficult for plaintiffs to pursue legitimate malpractice claims.

The reluctance of physicians to testify against other physicians in the same practice area often dooms a plaintiff who can only proof negligence by using an eminently qualified expert who happens to practice in a related but different specialty — an outcome that may be exactly what insurance industry lobbyists who support these laws have hoped to achieve.

The question before the South Carolina Supreme Court in Eades v. Palmetto Cardiovascular and Thoracic was whether a vascular surgeon was qualified to testify that a primary care physician was negligent with regard to the diagnosis and treatment of a patient’s aneurysm. The state supreme court decided that question in favor of the patient.

Facts of the Case

Johnny Eades sought treatment for an aneurysm in his left iliac artery. About three years later, he filed a notice of intent to bring a medical malpractice claim against several healthcare providers. Eades named Dr. Paul Scudder as his expert witness and provided Dr. Scudder’s affidavit in compliance with South Carolina law.

Dr. Scudder is Board certified in surgery and surgical critical care. Dr. Scudder’s affidavit averred that Dr. Scudder is licensed to practice medicine in several states, that he currently practices and has been actively engaged in practice for more than five years.

Dr. Scudder’s practice includes the evaluation of patients with aneurysms and occluded arteries that are similar to the medical condition presented by Eades.

Dr. Scudder averred that he is familiar with the standard of care that applies to the evaluation and treatment of patients with occluded arteries and aneurysms.

Trial Court Dismissal

The trial court dismissed the lawsuit, finding that Dr. Scudder’s affidavit did not comply with South Carolina law. A pre-suit affidavit must demonstrate that the expert is:

  • board certified “in the area of practice or specialty about which the standard of care is offered,” or
  • has “actual professional knowledge or experience” in that area of practice or specialty, acquired in the active practice of, or teaching about, the area of specialty during three of the previous five years.

The statute also includes a third potential qualification: evidence that the expert “has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual’s study, experience or both.” The expert’s credentials must establish his or her expertise to render the proffered opinion.

The dismissal motion was based on the assertion that Dr. Scudder’s affidavit stated that he is certified and practices as a vascular and critical care surgeon, while the defendant physicians practice in the areas of emergency medicine and primary care. The defendants argued that they practiced in a different area of medicine than Dr. Scudder, so he could not testify about the standard of care they should have followed.

That distinction might seem meaningless to an ordinary observer, given that Dr. Scudder averred that he understands the standard of care that should apply to the evaluation and treatment of aneurysms. The fact that Dr. Scudder is a surgeon, while the defendant doctors are not, hardly seems relevant to Dr. Scudder’s ability to form an opinion that would help the jury understand what prudent doctors should do when examining a patient who might have an aneurysm.

In a sensible world, it would seem that Dr. Scudder was more qualified than he needed to be. The trial court nevertheless followed a disturbing trend by reading the statute in a hypertechnical way, without asking whether Dr. Scudder actually understood the applicable standard of care. The judge agreed with the defendants and dismissed the case.

Appellate Decision

The South Carolina Supreme Court reversed the trial court’s dismissal of the lawsuit. While the court disagreed with the trial court’s narrow interpretation of the statutory phrase “area of practice or specialty,” it focused on the statute’s third alternative: specialized knowledge and the credentials to offer an expert opinion. That alternative is much closer to the determination of expertise that applies in other areas of the law.

The court concluded that the final alternative in the statute “contemplates the production of an expert affidavit from a doctor who is not certified in and does not practice in the same area of medicine as the defendant doctor, but otherwise possesses specialized knowledge to assist the trier of fact.”

The court’s interpretation is entirely reasonable. The purpose of limiting expert opinions in malpractice cases is to assure that experts are qualified to give helpful testimony, not to protect negligent doctors by making qualified experts harder for injured patients to find.

South Carolina’s statute, as interpreted by its highest court, puts the knowledge of the witness ahead of the artificial barriers imposed by the first two alternatives. The fact that a surgeon has more training and experience than a primary care physician should not disqualify the surgeon from acting as an expert witness.

Having interpreted the statute to permit qualified witnesses to testify even if they do not practice the same specialty as the defendant doctor, the court had no difficulty deciding that Dr. Scudder was a qualified expert. His affidavit explained why his training and experience enabled him to provide opinions that would be helpful to the jury, and his credentials qualified him to identify negligent acts concerning the identification and treatment of aneurysms. Eades’ lawsuit was therefore allowed to proceed.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.