Medical Malpractice - Expert Affidavit filed with Notice of Intent Means Affidavit Not Required for Complaint

The South Carolina Supreme Court held that an expert affidavit filed with a notice of intent to file a medical malpractice lawsuit satisfied the requirement to commence such a lawsuit without the need to attach a second affidavit to the subsequently filed complaint. The decision isWilkinson v. East Cooper Hospital, et al, opinion number 27423 filed July 23, 2014.

Generally, in South Carolina, a lawsuit filed against a professional requires that an affidavit of an expert attesting to at least one negligent act of the defendant be attached to the Complaint. For those kinds of lawsuits, there is no requirement that the plaintiff first file and serve a Notice of Intent on the defendant with an affidavit from an expert and in engage in pre-litigation mediation before actually filing a lawsuit like there is in a medical malpractice case.

The Court made clear that “the plaintiff must properly initiate the claim with the NOI and attempt to resolve the case within a short timeframe. If the parties fail to resolve the case through mediation, the case almost immediately progresses as a customary professional negligence action. Thus, to require a second expert affidavit at the litigation stage in the proceeding leads to an absurd result as the plaintiff's claim has not changed during the pre-litigation proceedings.”

This decision is “consistent with the Court's decisions to permit medical malpractice cases to proceed on the merits rather than to affirm unwarranted dismissals based on technical noncompliance with the medical malpractice statutes.”

A copy of the decision is available from the Supreme Court website.