Columbia/CSA-HS Greater Columbia Healthcare System, LP v. South Carolina Medical Malpractice Liability Joint Underwriting Ass'n

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Columbia/CSA-HS Greater Columbia Healthcare
System, LP d/b/a Providence Hospital, Petitioner,

v.

The South Carolina Medical Malpractice Liability Joint
Underwriting Association and Michael P. Taillon,
Respondents.

Appellate Case No. 2011-197986

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Richland County

Alison Renee Lee, Circuit Court Judge

Opinion No. 27484

Heard April 1, 2014 – Filed January 21, 2015

AFFIRMED

C. Mitchell Brown and Michael J. Anzelmo, both of
Nelson Mullins Riley & Scarborough LLP, of Columbia,
and Monteith P. Todd, of Sowell Gray Stepp & Laffitte
LLC, of Columbia, for Petitioner.

James Edward Bradley, of Moore, Taylor & Thomas,
P.A., of Columbia, and Andrew F. Lindemann, of
Davidson & Lindemann, P.A., of Columbia, for
Respondents.
JUSTICE KITTREDGE: At issue in this case is whether the medical
malpractice statute of repose1 applies to the indemnity claim of Petitioner
Columbia/CSA-HS Greater Columbia Healthcare System, LP (Providence
Hospital). The trial court and the court of appeals held that it does and thus bars
the indemnity action brought by Providence Hospital. Because we conclude that
Providence Hospital's indemnity action is barred by the statute of repose, we
affirm.

I.

On May 31, 1997, Dr. Michael Hayes and Dr. Michael Taillon were working as
emergency room physicians at Providence Hospital, presumably as independent
contractors.2 Arthur Sharpe came to the Providence Hospital emergency room on
the same date, complaining of chest pain. Dr. Hayes and Dr. Taillon evaluated
Sharpe and diagnosed him as suffering from reflux. Sharpe was discharged.
Sharpe had actually suffered a heart attack, which was determined a few days later
when he sought further medical care elsewhere.

Because of the misdiagnosis, on May 25, 1999, Sharpe and his wife filed a medical
malpractice and loss of consortium action against Providence Hospital and Dr.
Hayes. The Sharpes did not name Dr. Taillon as a defendant. Providence Hospital
settled with the Sharpes on June 10, 2004.

On June 7, 2007, Providence Hospital filed this equitable indemnification action
against Dr. Taillon and his medical malpractice insurer, The South Carolina
Medical Malpractice Liability Joint Underwriting Association (collectively
Respondents). Respondents moved for summary judgment on the ground that the
medical malpractice statute of repose bars Providence Hospital's claim and the
circuit court granted the motion on that basis. Providence Hospital appealed, and
the court of appeals affirmed. Columbia/CSA-HS Greater Columbia Healthcare
Sys. v. S.C. Med. Malpractice Liab. Joint Underwriting Ass'n, 394 S.C. 68, 75, 713

1
S.C. Code Ann. § 15-3-545 (2005).
2
Cf. Simmons v. Tuomey Reg'l Med. Ctr., 341 S.C. 32, 53, 533 S.E.2d 312, 323
(2000) (affirming as modified the court of appeals imposing "a nondelegable duty
on hospitals with regard to the physicians who practice in their emergency rooms"
and adopting the Restatement (Second) of Torts § 429).
S.E.2d 639, 642 (Ct. App. 2011). We granted certiorari to review the court of
appeals' decision.

II.

An appellate court reviews the grant of summary judgment using the same
standard employed by the circuit court. Lanham v. Blue Cross & Blue Shield of
S.C., Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002). Summary judgment is
proper where there are no genuine issues of material fact and the movant is entitled
to judgment as a matter of law. Rule 56(c), SCRCP; Tupper v. Dorchester Cnty.,
326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997). "'Questions of statutory
interpretation are questions of law, which we are free to decide without any
deference to the court below.'" Grier v. Amisub of S.C., Inc., 397 S.C. 532, 535,
725 S.E.2d 693, 695 (2012) (quoting CFRE, LLC v. Greenville Cnty. Assessor, 395
S.C. 67, 74, 716 S.E.2d 877, 881 (2011)).

III.

The General Assembly has enacted a six-year statute of repose for medical
malpractice actions. S.C. Code Ann. § 15-3-545. "A statute of repose creates a
substantive right in those protected to be free from liability after a legislatively
determined period of time." Capco of Summerville, Inc. v. J.H. Gayle Constr. Co.,
368 S.C. 137, 142, 628 S.E.2d 38, 41 (2006) (citing Langley v. Pierce, 313 S.C.
401, 403–04, 438 S.E.2d 242, 243 (1993)). "A statute of repose is typically an
absolute time limit beyond which liability no longer exists and is not tolled for any
reason because to do so would upset the economic balance struck by the legislative
body." Id. (emphasis added) (citing Langley, 313 S.C. at 404, 438 S.E.2d at 243).
Thus, "'[s]tatutes of repose by their nature impose on some plaintiffs the hardship
of having a claim extinguished before it is discovered, or perhaps before it even
exists.'" Id. (quoting Camacho v. Todd & Leiser Homes, 706 N.W.2d 49, 54 n.6
(Minn. 2005)).

The question before us is whether Providence Hospital's claim for equitable
indemnification is subject to the six-year statute of repose in section 15-3-545.
"The cardinal rule of statutory construction is to ascertain and effectuate the intent
of the legislature." Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000)
(quoting Charleston Cnty. Sch. Dist. v. State Budget and Control Bd., 313 S.C. 1,
5, 437 S.E.2d 6, 8 (1993)).
Section 15-3-545(A) provides:

In any action . . . to recover damages for injury to the person arising
out of any medical, surgical, or dental treatment, omission, or
operation by any licensed health care provider . . . acting within the
scope of his profession must be commenced within three years from
the date of the treatment, omission, or operation giving rise to the
cause of action or three years from date of discovery or when it
reasonably ought to have been discovered, not to exceed six years
from date of occurrence, or as tolled by this section.

The statute of repose applies to an action "to recover damages for injury to the
person arising out of any medical, surgical, or dental treatment, omission, or
operation." Under any construction of the statute, the language must include the
claim against Dr. Taillon to establish medical malpractice, which has never been
determined. As the court of appeals noted:

In order to prove it is entitled to equitable indemnification, Providence
Hospital must show (1) [Dr.] Taillon was liable for causing Sharpe's
damages, (2) it was exonerated from any liability for those damages,
and (3) it suffered damages as a result of Sharpe's medical malpractice
action which was eventually proven to be the fault of [Dr.] Taillon.

Columbia, 394 S.C. at 72, 713 S.E.2d at 641 (citation omitted). As the court of
appeals correctly concluded, "[b]ecause Providence Hospital must establish [Dr.]
Taillon's liability for Sharpe's damages in order to show it is entitled to equitable
indemnification, we find Providence Hospital's action is an action to recover
damages for injury to the person." Id. at 73, 713 S.E.2d at 641. Thus, Providence
Hospital may not prevail on its equitable indemnification claim unless it proves
that Dr. Taillon is liable to Sharpe for damages for injury to the person, which falls
squarely within the language of the statute of repose.3 Under these circumstances,
we believe the legislature intended section 15-3-545(A) to bar Providence
Hospital's indemnity action.

The dissent attempts to minimize this essential element of Providence Hospital's
claim, referring to it as "but one element" and that "proof of the underlying
tortfeasor's liability is only one element that the hospital must prove." But it is an

3
We agree with the court of appeals that, in this context, there is no distinction
between seeking settlement costs or damages for injury to the person, for both
require proving Dr. Taillon's liability for Sharpe's damages.
element that is unquestionably part of section 15-3-545(A) and therefore is
controlled by the statute of repose.

While the dissent would construe Providence Hospital's claim for indemnification
as beyond the reach of section 15-3-545, we observe that the General Assembly
has limited the reach of the statute of repose by setting forth exceptions. Section
15-3-545(B) excludes from the operation of the statute of repose actions where a
foreign object, such as a surgical instrument, is left in the "body or person of any
one" and permits these actions to "be commenced within two years from date of
discovery or when it reasonably ought to have been discovered." Section 15-3-
545(C) excludes actions that arose "prior to June 10, 1977[,]" and section 15-3-
545(D) contains a tolling provision for persons under the age of majority. If the
General Assembly desires to expand those exceptions to include the situation
presented here, that decision lies exclusively in the Legislative Branch.

Finally, Providence Hospital argues that its view of legislative intent concerning
the medical malpractice statute of repose is supported by reference to the
construction statute of repose,4 which expressly includes a reference to indemnity
actions. We disagree, for we view the language and structure of the medical
malpractice and construction statutes of repose differently. The medical
malpractice statute of repose expressly excludes several categories of claims from
its reach, as noted above. S.C. Code Ann. § 15-3-545(B)–(D). Indemnity actions
are not excluded. Id. In contrast, the construction statute of repose expressly
defines what types of actions are included, listing nine discrete categories of
actions. Id. § 15-3-640(1)–(9) (2013). Included among these are "action[s] for
contribution or indemnification for damages sustained on account of an action
described in this section." Id. § 15-3-640(6).

We agree with Providence Hospital that the language of the construction statute of
repose demonstrates that the General Assembly can expressly include indemnity
claims in a statute of repose, yet the General Assembly is free to structure a statute
of repose as it sees fit. The medical malpractice statute of repose and the
construction statute of repose are drafted in entirely different ways. The former
includes broad and expansive language and then lists what claims are not included
in the statute of repose, while the latter lists the types of claims that are included in
the statute of repose. Because the General Assembly structured the medical
malpractice statute of repose and the construction statute of repose in different

4
S.C. Code Ann. § 15-3-640 (2013).
ways, we do not believe Providence Hospital's syncretistic approach to statutory
construction is an effective approach to discerning legislative intent.

In this case, Sharpe walked into Providence Hospital's emergency room over
seventeen years ago. There was no allegation of medical malpractice against Dr.
Taillon, much less any adjudication, within the statute of repose. Permitting
Providence Hospital's indemnity claim to proceed at this juncture would "allow
Providence Hospital to subject [Dr.] Taillon to liability for medical malpractice
after the legislatively proscribed six-year statute of repose expired." Columbia,
394 S.C. at 75, 713 S.E.2d at 642. Such a result would be fundamentally at odds
with the language and manifest purpose of the statute of repose.

IV.

We find that the medical malpractice statute of repose bars Providence Hospital's
indemnity claim. We affirm.

AFFIRMED.

PLEICONES and BEATTY, JJ., concur. TOAL, C.J., dissenting in a
separate opinion in which HEARN, J., concurs.
CHIEF JUSTICE TOAL: I respectfully dissent because I read section 15-3-
545(A) more narrowly than the majority. In my view, the plain language of
section 15-3-545(A) applies to all lawsuits arising from the underlying tortious
conduct of the medical professional. However, indemnification actions such as
this one are legally distinct from the underlying tort. Accordingly, it is my opinion
that the statute does not apply to indemnification actions.

I. Underlying Facts and the Majority's Holding
This appeal is predicated upon two related cases. The first case involves the
Sharpes' medical malpractice and loss of consortium claims against Dr. Hayes and
Providence Hospital for a misdiagnosis made by Drs. Hayes and Taillon seventeen
years ago. Providence Hospital settled the first case with the Sharpes ten years
ago.

The second case, which is the subject of this appeal, is an equitable
indemnification action brought by Providence Hospital against Dr. Taillon and his
medical malpractice insurer, who were not named as defendants in the first case.
The hospital filed its suit seven years ago.5

South Carolina's medical malpractice statute of repose provides, in relevant
part:

[A]ny action . . . to recover damages for injury to the person arising
out of any medical, surgical, or dental treatment, omission, or
operation by any licensed health care provider . . . acting within the
scope of his profession must be commenced within three years from
the date of the treatment, omission, or operation giving rise to the
cause of action or three years from date of discovery or when it
reasonably ought to have been discovered, not to exceed six years
from the date of occurrence, or as tolled by this section [because the
person is under the age of majority].

S.C. Code Ann. § 15-3-545(A), (D).

5
In other words, Providence Hospital filed its suit three years after its indemnity
claim accrued, upon the payment of its settlement with the Sharpes. Cf. First Gen.
Servs. of Charleston, Inc. v. Miller, 314 S.C. 439, 444, 445 S.E.2d 446, 449 (1994)
("As to indemnity, the statute of limitations generally runs from the time judgment
is entered against the defendant.").
 The majority affirms the lower courts' rulings that Providence Hospital's
indemnity claim is time-barred. In doing so, the majority tacitly admits that the
medical malpractice statute of repose does not define what constitutes an action "to
recover damages for injury to the person arising out of any medical, surgical, or
dental treatment, omission, or operation." Then, without providing a statutory
basis for its conclusion, the majority broadly interprets section 15-3-545 to
encompass both claims for injury to the person and equitable indemnification. In
doing so, it places great importance on the fact that Providence Hospital "may not
prevail on its equitable indemnification claim unless it proves that Dr. Taillon is
liable to Sharpe for damages for injury to the person."

I believe the majority errs in its interpretation of section 15-3-545 because it
fails to recognize that proof of the underlying tortfeasor's liability is but one
element in an equitable indemnification claim. Accordingly, I would not read the
medical malpractice statute of repose to encompass indemnification claims.

II. Analysis

"The cardinal rule of statutory construction is to ascertain and effectuate the
intent of the legislature." Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581
(2000). "Where the statute's language is plain and unambiguous, and conveys a
clear and definite meaning, the rules of statutory interpretation are not needed and
the court has no right to impose another meaning." Id.

I am persuaded that the General Assembly did not intend section 15-3-
545(A) to apply to indemnification actions based on: (1) the plain language of the
statute; (2) the nature of an indemnification action; and (3) the broader statutory
scheme encompassing section 15-3-545.

A. Nature of Indemnification Actions

A claim for equitable indemnification allows an innocent party to recover
"the amount the innocent party must pay to a third party because of the at-fault
party's breach of contract or negligence as well as attorney fees and costs which
proximately result from the at-fault party's breach of contract or negligence."
Town of Winnsboro v. Wiedeman-Singleton, Inc., 307 S.C. 128, 130–31, 414
S.E.2d 118, 120 (1992). Thus, damages in an equitable indemnification suit
include: (1) the damages caused due to the underlying tort; and (2) the innocent
party's attorneys' fees incurred in defending itself in the underlying tort suit. See,
e.g., Rhett v. Gray, 401 S.C. 478, 497–98, 736 S.E.2d 873, 883–84 (Ct. App. 2012)
(quoting Addy v. Bolton, 257 S.C. 28, 33, 183 S.E.2d 708, 709–10 (1971)).6

Moreover, unlike the underlying tort claim, an equitable indemnification
claim does not arise at the time the underlying tort plaintiff suffered the tortious
damage. Rather, an indemnity claim "accrues at the time the indemnity claimant
suffers loss or damage, that is, at the time of payment of the underlying claim,
payment of a judgment thereon, or payment of a settlement thereof by the party
seeking indemnity." Maurice T. Brunner, Annotation, When Statute of Limitations
Commences to Run Against Claim for Contribution or Indemnity Based on Tort, 57
A.L.R.3d 867 (1974); accord First Gen. Servs. of Charleston, Inc. v. Miller, 314
S.C. 439, 444, 445 S.E.2d 446, 449 (1994).

Therefore, an indemnification action is separate and distinct from the
underlying tort action, as the damages suffered by the parties involved in each suit
are distinct, and the two causes of action accrue at different times. See, e.g., Canal
Ins. Co. v. Leb. Ins. Agency, Inc., 504 F. Supp. 2d 113, 117 (W.D. Va. 2007) ("An
indemnity claim does not seek recovery for any direct harm caused by the
defendant to the plaintiff—it is clearly distinct from a direct cause of action.");
McDermott v. City of New York, 406 N.E.2d 460, 462–63 (N.Y. 1980) ("[T]he
indemnity claim is a separate substantive cause of action, independent of the
underlying wrong . . . ."); Cent. Wash. Refrigeration, Inc. v. Barbee, 946 P.2d 760,
764 (Wash. 1997) ("Indemnity actions are distinct, separate causes of action from
the underlying wrong and are governed by separate statutes of limitations.");
Brunner, supra ("The cause of action for indemnity of one whose liability for a tort
is secondary or constructive, against one whose liability for the tort is primary, is
separate and distinct from the injured person's cause of action for the tort, and is
generally recognized not to be a mere species of subrogation to the tort cause of
action.").7

6
In contrast, in the underlying tort suit, the injured party may only recover
damages caused by the tort itself, and may not recover attorneys' fees.
7
I note that the majority cites no authority beyond the court of appeals' opinion in
this case for its conclusion that "Providence Hospital's [equitable indemnification]
action is an action to recover damages for injury to the person." (Citation omitted)
(quotation marks omitted). While I agree that the indemnification action is closely
entwined with the merits of the underlying tort action, there is no authority in the
law of this State for the conclusion that the two causes of action are wholly
 The majority essentially equates Providence Hospital's indemnity action
with the underlying tort action. However, proof of the underlying tortfeasor's
liability is only one element that the hospital must prove to prevail on its equitable
indemnification claim. That element is not, by itself, "an action . . . to recover
damages for injury to the person," but instead is a component of an action to
reimburse an innocent party who has paid damages on behalf of the underlying
tortfeasor. Therefore, I disagree with the majority that the medical malpractice
statute of repose applies so broadly as to encompass any action even tangentially
related to "an action . . . to recover damages for injury to the person."

Further, under the majority's reading of section 15-3-545, an innocent party
named in the underlying tort suit would rarely be able to bring an equitable
indemnification claim. For example, if "a lawsuit is filed on the eve of the running
of the statute of repose, but is not resolved until after the statute has run, the
[indemnification] action will be barred before the right has even accrued." Capco
of Summerville, Inc. v. J.H. Gayle Constr. Co., 368 S.C. 137, 144, 628 S.E.2d 38,
42 (2006) (emphasis added). I believe this is an unduly harsh consequence of the
majority's interpretation of section 15-3-545, and one that was not intended by the
General Assembly.

The majority's holding represents a fundamental misunderstanding of the
nature of indemnification actions which I fear will have far-reaching effects on the
ability to seek indemnification. Specifically, it imposes several new
"requirements" to bring timely indemnification actions.

For example, the majority states that the underlying action must establish the
fault of the underlying tortfeasor, whether or not he is a named party in that action.
Indeed, the majority goes so far as to require, prior to the running of the statute of
repose, either an allegation of medical malpractice against the underlying
tortfeasor, or possibly even an adjudication by the innocent party against the
tortfeasor.

I find this new "requirement" to bring timely indemnification actions
patently at odds with the doctrines of standing and ripeness. As explained, supra,
the innocent party's right to sue for indemnification does not accrue until it actually
sustains damages through either paying an injured party on behalf of the tortfeasor,
or incurring attorneys' fees from defending itself in the underlying tort suit.
Therefore, there is no justiciable case or controversy until the conclusion of the
underlying tort action, regardless of its outcome. See, e.g., Waters v. S.C. Land

interdependent.
Res. Conservation Comm'n, 321 S.C. 219, 227–28, 467 S.E.2d 913, 917–18 (1996)
("A justiciable controversy is a real and substantial controversy which is ripe and
appropriate for judicial determination, as distinguished from a contingent,
hypothetical or abstract dispute . . . . It is not enough that a threat of possible
injury currently exists; the mere threat of a potential injury is too contingent or
remote to support present adjudication." (citations omitted) (internal quotation
marks omitted)).

The plain language of section 15-3-545(A) explicitly applies to "damages for
injury to the person arising out of any medical, surgical, or dental treatment,
omission, or operation by any licensed health care provider . . . acting within the
scope of his profession." In contrast, an indemnification claim seeks to recover for
the loss of a judgment or settlement an innocent third party is obligated to pay,
rather than for medical injury.

Here, Providence Hospital's damages arose due to its vicarious liability for a
third-party tortfeasor's misdiagnosis. Thus, Providence Hospital's equitable
indemnification suit does not directly seek to recover for any harm caused by the
tort defendant to the underlying tort plaintiff. Accordingly, it is my view that
section 15-3-545 does not bar Providence Hospital's equitable indemnification
claim.8

8
Medical malpractice statutes of repose vary from state to state. However, I find
persuasive the reasoning of the Missouri Supreme Court in considering a statute
similar to section 15-3-545. The Missouri Supreme Court found that Missouri's
medical malpractice statute of repose "encompasses those actions where the
consumer of health services seeks damages for injuries resulting from some
improper, wrongful or careless acts or omissions on the part of the healthcare
provider in the delivery of health care to the consumer." Rowland v. Skaggs Cos.,
666 S.W.2d 770, 772–73 (Mo. 1984). Therefore, the court concluded that there is
no reason to subject a contribution action to the medical malpractice statute of
repose because "an action for contribution is neither grounded in tort nor
reasonably related to the types of actions enumerated" in the statute of repose;
rather, a contribution action "accrues from the existence of a joint obligation on a
liability shared by tortfeasors." Id. at 773. I would adopt this reasoning with
respect to our own medical malpractice statute of repose.
 B. Statutory Scheme

Additionally, I believe other provisions from the surrounding statutory
scheme evidence the General Assembly's intent to exclude indemnification actions
from the reach of section 15-3-545.

"[S]tatutes are to be construed with reference to the whole system of law of
which they form a part." Roche v. Young Bros., Inc. of Florence, 332 S.C. 75, 81,
504 S.E.2d 311, 314 (1998). The medical malpractice statute of repose is part of
Title 15, Chapter 3 of the South Carolina Code, which governs "Limitations of
Civil Actions." Title 15, Chapter 3 likewise contains a statute of repose for
improvements to real property, which provides in relevant part:

No actions to recover damages based upon or arising out of the
defective or unsafe condition of an improvement to real property may
be brought more than eight years after substantial completion of the
improvement. For purposes of this section an action based upon or
arising out of the defective or unsafe condition of an improvement to
real property includes:

...

(6) an action for contribution or indemnification for damages

sustained on account of an action described in this section; . . .

See S.C. Code Ann. § 15-3-640 (2005 & Supp. 2013).

In my opinion, this section demonstrates that the General Assembly is
capable of and will expressly include indemnification claims within a statute of
repose when it so desires. The express inclusion of indemnification claims in
section 15-3-640—and the absence of any mention of indemnity claims within
section 15-3-545—indicates to me that the General Assembly did not intend to
bring such claims within section 15-3-545. See Berkeley Cnty. Sch. Dist. v. S.C.
Dep't of Revenue, 383 S.C. 334 n.15, 679 S.E.2d 913, 925 n.15 (2009) (considering
related statutes as relevant because they indicate the "General Assembly knows
how to" include a provision when it so desires); Doe v. Brown, 331 S.C. 491, 496,
489 S.E.2d 917, 920 (1997) (considering related statutes and concluding that "[t]he
clear and unambiguous language of [] these statutes indicates that when the
Legislature intended to exclude 'criminal parents' from the adoption process, it did
so"); 82 C.J.S. Statutes § 478 (2014) ("[W]here a statute contains a given
provision, the omission of such a provision from a similar statute concerning a
related subject is significant to show that a different intention has existed.").

Conclusion
The majority makes a somewhat emotional argument that Providence
Hospital should not prevail because the underlying tortious conduct by Drs. Hayes
and Taillon occurred "over seventeen years ago." However, the equitable
indemnification action at issue here began only three years after Providence
Hospital's indemnity claim accrued, upon its settlement with the Sharpes.

For the foregoing reasons, I would hold that section 15-3-545 does not bar
an indemnity claim that arises from an underlying medical malpractice action and
which commences more than six years after the date of the occurrence. Therefore,
I would reverse and remand for further proceedings.

HEARN, J., concurs.