Brouwer v. Providence Hospitals: Simplifying Filing of Medical Lawsuits for Victims – the Law Office of Daryl G. Hawkins

We at the Law Firm of Daryl Hawkins couldn’t be more proud to be a part of the process to simplify the process of filing of a medical lawsuit in South Carolina. By empowering lay people who recognize obvious errors by professional medial staff, we have helped to level the playing field in medical malpractice suits.

In 2005 the South Carolina legislature enacted several laws that provide special protection to medical and health care providers that other citizens of the state do not generally enjoy. One part of these laws requires a person who has been injured by a type of medical provider identified on a list to be sent a Notice that describes the nature of the injured person’s claims and in many circumstances, requires the injured person to hire an expert witness to describe at least one thing the provider did wrong, before they can file the lawsuit for medical malpractice. This delays pursuit of meritorious cases by a minimum of 6 months and up to a year or more in many cases.

An injured person is required to do these things even before they have a full opportunity to get all of the information that would be important to understanding the claims, or potential claims and thus presents the opportunity for records to suddenly become lost or altered by unscrupulous people and potential defendants.

The list of protected types of providers is included in a broader list in SC Code Section 15-36-100(G) and applies to chiropractors, dentists, medical doctors, certain therapists, nurses, optometrists, osteopathic physicians, physicians assistants, and potentially others. See the Code section for the complete list of persons with special protection.

The statute requiring a Notice to be sent before a medical malpractice lawsuit can be filed is SC Code section 15-79-125. These statutes must be read together to make sense. Defendants claimed that all Plaintiffs in these matters would always be required to hire an expert witness to review the medical records that were available (even when all records are not available to the injured person) and to attach an affidavit of that expert describing an act of wrongdoing to the Notice. Getting these affidavits can be difficult and expensive and in many instances is entirely unnecessary.

The Defense had successfully argued the theory to a state court judge and the SC Court of Appeals, that even if a doctor cut off the wrong leg in an operation, a Plaintiff would still need to go out and hire an expert witness to provide an affidavit to say that was a wrongful act and constituted medical malpractice. We were able to reverse that line of thought in Patricia Brouwer’s case.

Patricia Brouwer, a school teacher and mother, had a latex allergy which she reported to her surgeon and to anesthesiology at the hospital pre-surgery. In addition to reporting her allergy orally and in writing she was wearing a red wristband identifying the allergy. She was having a procedure which would require a tube (called a nasal trumpet) to carry oxygen to her lungs through her nose and a”mouth gag” to keep her mouth open during the surgery. Despite her many warnings, both devices used were coated in latex and she suffered an allergic reaction requiring hospitalization in the intensive care unit.

The Defense agreed that in a medical malpractice lawsuit, if the negligence complained of was within the ambit of common knowledge of lay people, no expert would be needed at trial, but insisted that only one of the two statutes should be read in the Notice phase, and by reading that statute alone, this doctrine did not apply. In other words, the Plaintiff would need to hire an expert and pay them to provide the affidavit for sending the Notice, even though they would not need the expert months later when they filed the lawsuit, or even years later when the lawsuit made it to trial.

The Defense doggedly claimed an expert witness was needed to prove exposing a person to latex who is allergic to latex is malpractice. Our Supreme Court brought sense to the line of cases and held that the portion of the statute which sought to preserve the common law doctrine that expert witnesses were unnecessary when the alleged negligence could be understood by lay people with out the need for experts, applied to the Notice stage of a proceeding. To read the two statutes otherwise would “create an absurd result.”