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Ellis v. Oliver3/15/1999
Ellis by Ellis v. David Oliver, M.D.
Appeal From Lexington County Joseph A. Wilson, II, Circuit Court Judge
Heard December 6, 1998
AFFIRMED
Michael Anthony Ellis (Ellis), now deceased, initiated this medical malpractice action against Dr. David Oliver. After Ellis's death, Deborah Scott Ellis (Mrs. Ellis), in her capacity as personal representative of Ellis's estate, was substituted as plaintiff, and the complaint was amended to include wrongful death and survival actions. Mrs. Ellis now appeals an order of the trial court that reduced a jury award in her favor by the amount of her settlement with Richland Memorial Hospital (Richland Memorial). We affirm.
BACKGROUND
In October 1988, Ellis was injured in a single car accident. As a result of his injuries, he was admitted to Richland Memorial. Doctor Oliver, an anesthesiologist, was among the medical personnel who treated Ellis's injuries. In an effort to establish an airway, Dr. Oliver made five unsuccessful attempts to insert a tube into Ellis's nasal passage. Doctor Oliver then tried five times to orally intubate Ellis, but was not successful. An airway was eventually established by a surgical resident. Ellis went into neurogenic shock during the attempted intubations and was rendered quadriplegic. Approximately two years later, Ellis died as a result of complications related to his quadriplegia.
Ellis instituted a negligence action against Richland Memorial in 1989 and later instituted this action against Dr. Oliver. In March 1993, Mrs. Ellis entered into an agreement with Richland Memorial releasing the hospital from further liability upon payment of $140,000. This amount equaled the Richland Memorial bills incurred by Ellis as a result of the hospital's alleged negligence.
During the trial against Dr. Oliver, Mrs. Ellis did not introduce any of the Richland Memorial bills. The jury awarded Mrs. Ellis $411,102 for the survival action and $288,898 for the wrongful death action. Doctor Oliver appealed, and during the pendency of his appeal, he filed a motion seeking to reduce the jury award by the amount of the settlement Mrs. Ellis received from Richland Memorial. The trial court determined it did not have jurisdiction to adjudicate the motion during the pendency of the appeal. After the supreme court affirmed the jury's verdict, the trial court heard Dr. Oliver's motion for set-off. The trial court reduced the jury's verdict by $140,000, the amount Mrs. Ellis received in the settlement with Richland Memorial.
On appeal, Mrs. Ellis contends that the trial court erred (1) by allowing Dr. Oliver to raise the issue of set-off without complying with procedural requirements, (2) by applying South Carolina Code § 15-38-50, and (3) by allowing set-off under these particular circumstances since no double recovery would have occurred.
DISCUSSION
I.
Mrs. Ellis first argues that the trial court erred by not requiring Dr. Oliver to follow the rules of civil procedure in requesting the set-off. She contends the trial court erred by not treating Dr. Oliver's motion for set-off as an untimely Rule 59(e) motion. We disagree.
South Carolina Code § 15-38-50 provides:
"When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:"
"(1) it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the rele
Page 1 2 3 4 South Carolina Personal Injury Attorneys
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