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Shadwell v. Craigie11/1/2004
. Craigie's failures, the record in this case supports a finding that Shadwell's cause of action for failure to inform her of the test results was barred by the statute of repose.
Medical malpractice actions are governed by a three-year statute of limitations and a six-year statute of repose. The statute provides:
In any action, other than actions controlled by section (B), to recover damages for injury to the person arising out of any medical, surgical, or dental treatment, omission, or operation by any licensed health care provider... acting within the scope of his profession must be commenced within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence, or as tolled by this section.
S.C. Code Ann. ยง 15-3-545(A) (Supp. 2003) (emphasis added).
Respondents contended the trial court properly granted summary judgment in their favor because the occurrence took place more than six years prior to the commencement of Shadwell's action. On the other hand, Shadwell argued that the statute of repose did not bar her action against Dr. Craigie because the time period was tolled while she was under Dr. Craigie's continuous treatment. Thus, Shadwell asserted the "occurrence" did not happen until after she missed her March 27, 1996 appointment.
Our supreme court has recently addressed the continuous treatment doctrine. In Harrison v. Bevilacqua, 354 S.C. 129, 580 S.E.2d 109 (2003), the guardian for James L. McLean sued the Department of Mental Health and various physicians for negligence in their treatment of McLean from 1982 until his discharge in 1995. The court declined to adopt the continuous treatment/continuous tort doctrine, stating that "judicial adoption of the continuous treatment rule would run afoul of the absolute limitations policy the Legislature has clearly set" through statute, including the statute of repose. Harrison, 354 S.C. at 138, 580 S.E.2d at 114; see also Hoffman v. Powell, 298 S.C. 338, 339-340, 380 S.E.2d 821, 821 (1989) (holding that the statute of repose "constitutes an outer limit beyond which a medical malpractice claim is barred, regardless of whether it has or should have been discovered."); Dunbar v. Carlson, 341 S.C. 261, 269, 533 S.E.2d 913, 917 (Ct. App. 2000) (" he statute of repose imposes an outer limit for filing a medical malpractice action, regardless of when it is discovered."). Thus, the statute of repose in the present case was not tolled by the time period between Shadwell's February 1996 and March 1996 appointments, presumably a period of time she was under the care of Dr. Craigie.
We need only determine the time of the "occurrence" in order to determine if the statute of repose barred this cause of action. This court has previously determined the date of occurrence in a medical malpractice claim. O'Tuel v. Villani, 318 S.C. 24, 455 S.E.2d 698 (Ct. App. 1995), overruled on other grounds by I'on, L.L.C. v. Town of Mount Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000). In O'Tuel, parents alleged their child was injured during birth when they discovered he had certain physical and learning disabilities when he entered school. They sued the delivering physician nine years after the child was born. This court found that since the date of "occurrence" was the date of the child's delivery, the statute of repose barred the parents' action against the physician. O'Tuel, 318 S.C. at 27, 455 S.E.2d at 700 (holding that "while the parents' claim may have accrued when Adam started school, their claim is nonetheless barred because it was in
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