Ranucci v. Crain

PLEICONES, Justice.

I respectfully dissent. While I do not agree completely with the Court of Appeals, I do agree that S.C.Code Ann. § 15-79-125(A) (Supp.2013) requires a potential medical malpractice plaintiff to file an expert witness affidavit contemporaneously with her Notice of Intent to File Suit (NOI). I first explain my construction of § 15-79-125, the medical malpractice prelitigation statute and of S.C.Code Ann. § 15-36-100 (Supp. 2013), the professional negligence complaint statute. I then explain why I do not agree with the majority’s reading of these two statutes.

A. Statutory Construction

As the Court of Appeals correctly stated, the medical malpractice pre-litigation statute, § 15-79-125, and the professional negligence complaint statute, § 15-36-100, operate “in distinct time frames” Ranucci v. Crain, 397 S.C. 168, 176, 723 S.E.2d 242, 247 (Ct.App.2012). The medical malpractice statute requires the contemporaneous filing of a pre-complaint pre-litigation expert witness affidavit along with the NOI. § 15-79-125(A). The filing and service of these two documents, along with limited discovery and mandatory mediation, are prerequisites to “filing or initiating a civil action [alleging] medical malpractice____” § 15-79-125. The professional negligence complaint statute, § 15-36-100, on the other hand, is concerned with the expert affidavit that must, in most circumstances, accompany a complaint alleging professional negligence. There is no inherent conflict in the independent operation of these two statutes, one of which requires that a specific type of professional negligence claim go through a pre-complaint pre-litigation process.

The medical malpractice pre-litigation statute and the professional negligence complaint statute reference each other and thus we must interpret them in tandem. The medical malpractice pre-litigation statute provides the expert affidavit accompanying the NOI is “subject to the affidavit requirements established in Section 15-36-100,” the professional negligence complaint statute. I would hold this reference in § 15-79-125(A) incorporates only the provisions of § 15-36-100(A) which define “expert” for purposes of the professional *511negligence complaint affidavit requirement. My conclusion that only subsection (A) of § 15-36-100 is relevant to § 15-79-125’s medical malpractice pre-litigation affidavit requirement is confirmed by § 15-36-100(B).12 Subsection (B), which requires that a professional negligence complaint be accompanied by an expert affidavit, begins “Except as provided in Section 15-79-125.... ” In my opinion, this exception of the medical malpractice pre-litigation statute from § 15-36-100(B)’s contemporaneous complaint/affidavit requirement must be read to mean that medical malpractice complaints in cases that have been processed in accordance with § 15-75-125 are not subject to the expert witness affidavit requirements of the professional negligence complaint statute. I would find the legislature exempted these medical malpractice complaints from the expert witness affidavit requirement in § 15-36-100(B) because such an affidavit has already been provided at the NOI stage, and because the parties have already narrowed the issues through the pre-litigation process required by § 15-75-125.

Under my reading of § 15-36-100(B), there is no requirement that medical malpractice complaints be accompanied by an expert affidavit. It follows, then, that the grace period found in § 15-36-100(0(1) and the common knowledge exception of § 15-36-100(0(2), which by their own terms apply only to “the contemporaneous [complaint and expert affidavit] filing requirements of § 15-36-100(B),” are irrelevant in a medical malpractice case. I therefore agree with the Court of Appeals that since Ranucci did not file an expert affidavit along with her NOI, her NOI was properly dismissed.

B. The Majority’s Reasoning

The majority advances four reasons to support its conclusion that the provisions of § 15-36-100 must be incorporated wholesale into § 15-79-125. As explained below, I do not find any of the reasons support the majority’s interpretation of the two statutes. I note at the outset that the majority does not *512undertake to explain its understanding of the “Except as provided in § 15-79-125” language that begins § 15 — 36— 100(B), language that is critical to my construction of the two statutes.

The majority first asserts that without the wholesale incorporation of the professional negligence complaint statute into the medical malpractice pre-litigation statute, a medical malpractice plaintiff is deprived of the forty-five day grace period found in § 15-36-100(C)(l). The purpose of this grace period is to toll the statute of limitations when a professional negligence plaintiff files her complaint within ten days of the running of the statute in order to allow her time to procure an expert affidavit. The majority fails to acknowledge that in a medical malpractice case the statute is tolled much earlier, that is, when the NOI and expert witness affidavit are filed under the medical malpractice pre-litigation statute which states the contemporaneous filing of these two documents “tolls all applicable statutes of limitations.” § 15-79-125(A). Moreover, under § 15-36-100(0(1), the forty-five day grace period does not commence until “the filing of the complaint,” an event which cannot occur in a medical malpractice action until after the NOI and its affidavit have been filed, discovery materials exchanged, and mediation attempted. See § 15-79-125(E). I do not agree that the lack of a “grace period” in the medical malpractice pre-litigation statute, which contains its own tolling provision, mandates that we implant this separate, more limited tolling provision from the professional negligence complaint statute. Further, under my reading of § 15-36-100(B) the medical malpractice plaintiff is exempt from the requirement that her complaint be accompanied by an expert witness affidavit, and therefore she will never have need of the grace period found in § 15-36-100(0(1).

The majority next expresses concern that unless we hold that § 15-36-100(0(2) is incorporated into § 15-79-125, a medical malpractice plaintiff need always produce an expert witness affidavit at the NOI stage, even if her claim otherwise falls within the common knowledge exception. I do not understand why the requirement that an expert affidavit accompany every medical malpractice NOI, even where the subject matter is within a layperson’s common knowledge, leads to the conclusion that the pre-litigation statute must be read to *513include the same exception as found in the complaint affidavit statute. I am not aware of any rule that prohibits the legislature from imposing an expert affidavit requirement as a threshold matter in a medical malpractice situation even if at trial no expert testimony will be required. Moreover, the majority does not explain how § 15-36-100(0(2), which allows a plaintiff to invoke the common knowledge exception if her “pleaded specification of negligence” meets the criteria, can be applied where there is only a NOI, but no pleading. See Rule 7(a), SCRCP (pleadings do not include NOI).

As a third reason to incorporate all of § 15-36-100 into § 15-79-125 the majority asserts that absent such incorporation, there is no mechanism for a defendant to challenge the plaintiffs compliance with the medical malpractice pre-litigation statute. I disagree, and need only point to the present matter before the Court as proof. The provision allowing the present pre-litigation challenge is § 15-79-125(D), which states “The circuit court has jurisdiction to enforce the provisions of this section.” Under this subsection of the medical malpractice pre-litigation statute, for example, a court could require a plaintiff to file her standard interrogatories under § 15-79-125(A), or compel either party to comply with a subpoena issued pursuant to § 15-79-125(B). Under the majority’s view, however, if a medical malpractice plaintiff failed to file the pre-litigation affidavit required by § 15-79-125(A), filed a non-compliant one, or refused to participate in discovery, then the defendant would be powerless to do anything until the plaintiff filed her complaint, since it is only at that juncture that the sanctions in the professional negligence complaint statute can be invoked. See § 15-36-100(0(1), (E), (F). Requiring a defendant to wait until litigation has commenced to compel the medical malpractice complainant to comply with § 15-79-125 negates the entire pre-litigation scheme created by that statute. Moreover, the majority’s decision to incorporate the remedial portions of § 15-36-100, all of which address only the plaintiffs obligations when commencing her suit, ignores the fact that under the medical malpractice pre-litigation statute obligations are placed on both the plaintiff and the defendant. If the majority is correct, and the exclusive remedies for failure to comply with the medical malpractice pre-litigation statute are those found *514in § 15-36-100(0(1), (E), and (F), then the medical malpractice plaintiff is without any remedy should her defendant fail to meet its obligations under § 15-79-125.

Finally, the majority explains that unless we incorporate all of § 15-36-100 into § 15-79-125, “a plaintiff would be required to file two expert witness affidavits, i.e., one with the pre-litigation NOI pursuant to § 15-79-125(A) and another affidavit with the complaint pursuant to Section 15-36-100(B).” As explained above, I believe the first clause of § 15-36-100(B), “Except as provided in Section 15-79-125,” relieves a medical malpractice plaintiff from filing an expert affidavit along with her complaint. Even if the medical malpractice plaintiff were required to file an expert witness affidavit at two separate points in the litigation, I do not agree that such a seemingly unnecessary step requires that we construe the statutes as would the majority.

I respectfully dissent and would affirm the decision of the Court of Appeals as modified.

. The Court of Appeals would import some but not all of (B) into § 15-79-125. This is where I part ways with that court’s decision. Further, my analysis requires a modification of our decision in Grier v. AMISUB of South Carolina, Inc., 397 S.C. 532, 725 S.E.2d 693 (2012) which applied subsection B to the pre-litigation affidavit.