Court Reverses Directed Verdict: In South Carolina medical malpractice actions, the plaintiff must use expert testimony to establish both the required standard of care and the defendant’s failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.
In a South Carolina medical malpractice case in which an elderly man bled to death at home after undergoing Mohs surgery to treat the basal cell carcinoma on his left ear and left cheek, the paper discharge instructions he was provided instructed him to leave the pressure bandage on for forty-eight hours and to call “(803) 771-7506 ext. 209” with questions.
The dermatology practice’s after-hours phone message on the date of the Decedent’s surgery stated: “You have reached Carolinas Dermatology After-Hours. If this is a true emergency, please hang up now and call 911. If you know your party’s extension you may dial it now. To hear our automated options, press 1. For a prescription refill or to leave a message to be returned on the next business day, please press 2. For all other serious medical concerns, dial 9 now for our answering service. To hear these options again, press the * key.”
The plaintiff testified that she entered the extension number on the discharge instructions and left a message but never received a call back and “assumed that it must not be an emergency if they didn’t immediately call me back.” On cross examination, the plaintiff testified that she did not know there were more prompts on the after-hours message after the prompt to enter a party’s extension.
The defendant surgeon testified that he would have been able to save the Decedent if the Decedent had contacted him on the night of surgery. However, he further acknowledged he knew that when patients dialed extension 209, the call would go to his medical assistant’s desk, not an answering service, but if a patient listened to the entire message prompt, he could reach the answering service.
At the close of the plaintiff’s case, the defendants moved for a directed verdict, arguing the plaintiff failed to prove a breach of the standard of care and causation. In response, the plaintiff requested to amend her complaint to conform to the evidence and include the common knowledge exception. The defendants replied that the discharge instructions sheet was prepared and approved by doctors; thus, expert testimony was necessary to prove a breach of the standard of care. The trial court denied the plaintiff’s request to amend her complaint and granted the defendants’ motion for a directed verdict, finding there was no evidence upon which a reasonable jury could conclude the alleged negligent act or omissions from the defendant surgeon proximately caused the Decedent’s death. The plaintiff appealed.
In its April 12, 2023 opinion, the South Carolina Court of Appeals disagreed with the plaintiff’s argument that in society today, it is commonplace to interact with automated telephone prompts and most individuals will dial the extension when instructed to do so rather than listen to the message in its entirety, and therefore whether the defendants committed medical malpractice by providing a discharge form with instructions to dial an extension lies within the ambit of common knowledge. The appellate court stated: “we find the standard of care and breaching the standard of care did not lie within the ambit of common knowledge. Multiple doctors testified as to their differing uses of discharge instructions and phone prompt systems, which made the necessity of expert testimony more likely to aid the jury in determining the standard of care and a breach of that standard of care.”
However, the appellate court agreed that there existed conflicting testimony regarding the breach of the standard of
care related to post-surgery instructions, and “[v]iewing the facts in the light most favorable to Appellant, we hold the trial court erred in granting a directed verdict on this issue because it was not within the court’s authority to resolve conflicts in the testimony presented at trial … Although Dr. Blaskis testified Appellant and Decedent “were told extensively to call me if there was bleeding,” Appellant repeatedly refuted this testimony. As a result, a conflict in trial testimony existed which required submission to the jury … we reverse the trial court’s grant of a directed verdict on Dr. Blaskis’s post-surgical instructions on bleeding.”
Source Chalfant v. Carolinas Dermatology Group, P.A., Opinion No. 5977.
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