PROVEAUX v. MED. UNIVER. OF SOUTH CAROLINA
3/10/1997
These companion cases involve the single issue whether respondent, a physician at the Medical University of South Carolina (MUSC), is immune from suit under the South Carolina Governmental Tort Claims Act. We hold he is and affirm.
FACTUAL/PROCEDURAL BACKGROUND
Terry Proveaux injured her back when she fell twenty feet from a deer stand while hunting. She had emergency surgery on November 2, 1992, at MUSC. The surgery involved lumbar decompression and fusion using screws that were later found to be defective. In October 1994, the Proveauxes commenced these actions for medical malpractice and loss of consortium against MUSC, Acromed Corporation (which manufactured the defective screws), and the treating physicians including respondent Dr. Perot. Dr. Perot's role in the surgery was to perform a laminectomy, a procedure opening the spinal column and cleaning out bone chips.
Dr. Perot moved for summary judgment in both cases claiming under the South Carolina Governmental Tort Claims Act, S.C. Code Ann. § 15-78-70 (Supp. 1995), he is entitled to immunity as an employee of a governmental entity, MUSC. The trial judge granted summary judgment in both cases. The Proveauxes appeal.
LAW/ANALYSIS
Subsections (a) and (b) of § 15-78-70 of the South Carolina Governmental Tort Claims Act provide general immunity for an employee of a government entity who commits a tort while acting within the scope of his official duty. Subsection (c) further provides:
Prior to January 1, 1989, a person when bringing an
action against a governmental entity under the
provisions of this chapter, shall name as a party
defendant only the agency or political subdivision
for which the employee was acting and is not required
to name the employee individually . . . . In the
event that the employee is individually named, the
agency or political subdivision for which the
employee was acting must be substituted as the party
defendant. The provisions of this section may in no
way limit or modify the liability of a licensed
physician or dentist, acting within the scope of his
profession.
On or after January 1, 1989, . . . . The
provisions of this section in no way shall limit or
modify the liability of a licensed physician or
dentist, acting within the scope of his profession,
with respect to any action or claim brought hereunder
which involved services for which the physician or
dentist was paid, should have been paid, or expected
to be paid at the time of the rendering the services
from any source other than the salary appropriated by
the governmental entity or fees received from any
practice plan authorized by the employer whether or
not the practice plan is incorporated and registered
with the Secretary of State.
The italicized language was added by amendment effective May 10, 1994.
Dr. Perot participates in a "practice plan" as described in the May 1994 amendment. The trial judge held the amendment simply clarified the intent of the General Assembly to include doctors participating in a practice plan under the original provision of immunity that became effective for causes of action accruing on or after January 1, 1989. Since the alleged malpractice occurred in November 1992, he concluded
The facts relevant to this issue are undisputed. Dr. Perot is chairman of the Department of Neurosurgery at MUSC. He receives his annual income from two sources: MUSC and University Medical Associates (UMA). UMA is a non-profit corporation formed as a billing and collecting agent for the clinical practice of medicine at MUSC. Patients are billed by UMA for all services r
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