Brouwer v. Sisters of Charity Providence, an appeal heard in the South Carolina Supreme Court, involved a plaintiff who was admitted to a hospital to undergo surgery to treat sleep apnea.
While in surgery, the plaintiff had some type of allergic reaction and was transferred to the intensive care unit (ICU). While in the ICU, it was determined the plaintiff had an allergic reaction to latex. Before having surgery, she was asked if she had a latex allergy and told the hospital staff she did. She was wearing a latex allergy identification bracelet at the time of her surgery.
The plaintiff filed a Notice of Intent (NOI) along with her medical malpractice negligence complaint. As your Anderson, South Carolina personal injury lawyer can discuss, South Carolina has very specific procedural requirements for filing a summons and complaint that are different from most other jurisdictions.
The plaintiff did not file an expert witness affidavit with the NOI, because she possessed a good faith belief that a jury would not need an expert for the jury to understand that, if a person is allergic to latex and then exposed to latex, they will have a potentially serious allergic reaction.
Pursuant to South Carolina Rules of Civil Procedure, an expert witness is required to form an opinion based on training, knowledge or experience that is outside of the scope of what a layperson is expected to possess. For example, if there is a question as to whether a heart surgeon properly inserted a stent, the party making an argument would need to have an expert witness who is an experienced surgeon explain whether the procedure was done correctly. The average juror would not be expected to have the sort of expertise to make any decision without hearing from an expert.
On the other hand, the South Carolina Code section 15-36-100(C)(2) provides an exception to the expert witness requirement for things that are common knowledge. The trial court concluded that the fact that latex exposure causes a latex allergy falls within the common knowledge exception. The judge, however, dismissed the case because the plaintiff had not fulfilled the mediation requirement before filing her complaint.
The case was dismissed without prejudice, meaning that it could be refiled once the mediation requirement was complete. The defendant filed an appeal to the trial court’s denial of their motion to dismiss for failure to file an expert witness affidavit. If that motion had been granted, it would be with prejudice and the case could not be re-filed.
On appeal, the court looked at the common knowledge exception to the expert witness affidavit requirement and found the plaintiff should be permitted to invoke the exception. This is not to say there aren’t aspects of a latex allergy that would not require an expert testimony. For example, if there was a question of whether a particular brand of gloves could cause the allergy due to the chemical makeup of the gloves, that likely would require expert testimony.
Each case is going to be different, and will require careful analysis to determine whether it is necessary to secure an expert witness to testify on your behalf prior to trial.
Contact our Anderson personal injury lawyers at Lee Law Offices today by calling 800-887-1965.
Brouwer v. Sisters of Charity Providence, August 6, 2014, Georgia Supreme Court
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Gallant v. MacDowell: Medical Malpractice and the Discovery Rule, June 29, 2014, North Carolina Personal Injury Lawyers Blog