New South Carolina Case Holds Plaintiff Must File Expert Affidavit with Notice of Intent

By RPLLC • January 25th, 2012

Shannon Ranucci v. Crain

Three years after suffering a collapsed lung following a medical procedure, Shannon Ranucci filed a Notice of Intent to File Suit (Notice) against Corey K. Crain, M.D.  Forty-five days later, Ranucci filed an affidavit of a medical expert as a supplement to her Notice of Intent to File Suit. Dr. Crain filed a motion to dismiss the Notice of Intent to File Suit alleging that Ranucci’s failure to file the expert affidavit at the same time as the filing of the Notice of Intent was a violation of S.C. Code of Laws Section 15-79-125. The Circuit Court granted Dr. Crain’s motion and dismissed Ranucci’s Notice of Intent for failing to file the expert affidavit at the same time as the Notice of Intent. The Court of Appeals affirmed the Circuit Court’s dismissal.

At issue in the case is the operation of 2 South Carolina statutes: Section 15-79-125 and Section 15-36-100. Section 15-79-125 deals with Medical Malpractice actions and requires that a Notice of Intent to File Suit be filed prior to filing a lawsuit. This section also requires that an expert affidavit be filed along with the Notice of Intent to File Suit and also provides for the statute of limitations to be tolled during the time frame outlined by the statute for presuit discovery and presuit mediation.

Section 15-36-100 outlines requirements for expert affidavits. The Court of Appeals found in this case that Section 15-36-100(A) is the only part of 15-36-100 that applies to Section 15-79-125. Specifically, the Court found that the reference in Section 15-79-125 to Section 15-36-100 applies only to what is to be contained in the expert affidavit which is found in Section 15-36-100(A). The remaining subsections of 15-36-100 apply only AFTER a lawsuit has been filed; they do not apply to expert affidavits filed with a Notice of Intent to File Suit. This means that all Notices of Intent to File Suit MUST contain an expert affidavit attached to the filing at the time the Notice of Intent to File Suit is filed.

Because Ranucci’s Notice of Intent to File Suit did not contain an expert affidavit at the time it was filed, the Circuit Court properly dismissed the Notice.

Now Ms. Ranucci is forever barred from recovering from the doctor that caused her injuries in the first place because of the failure to follow the timeline set out in the Notice of Intent statute.

 

 

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