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Tatum v. Medical University of South Carolina5/3/1999
Appeal From Charleston County A. Victor Rawl, Circuit Court Judge
Heard March 9, 1999
REVERSED AND REMANDED
In this medical malpractice action, Jennifer M. Tatum appeals a circuit court order granting the Medical University of South Carolina's (MUSC) motion to dismiss pursuant to Rule 12(b)(6), SCRCP. Tatum contends the circuit court erred in finding workers' compensation benefits were Tatum's exclusive remedy, thus barring her medical malpractice claims against MUSC. We reverse and remand.
FACTS / PROCEDURAL HISTORY
On November 3, 1993, Tatum injured her back while transporting a pig in the course of her employment as an animal care technician with MUSC. MUSC is operated and funded as a public institution of the State of South Carolina and is a governmental entity as defined in the South Carolina Tort Claims Act.
Tatum's complaint sets forth the following facts. At the direction of MUSC, Dr. Nicholson, an assistant professor with MUSC's Back Pain Clinic, diagnosed Tatum with a "midline broadly based disc herniation." On March 25, 1994, after repeated cervical epidural injections, MUSC referred Tatum to Dr. Patel for surgical consultation. MUSC employed Dr. Patel as an assistant professor and neurological surgeon. On April 6, 1994, Dr. Patel surgically fused two of Tatum's vertebrae. On April 29, 1994, Dr. Patel repeated the surgery because the original bone graft site collapsed.
During the second surgery, Dr. Patel inserted a synthes plate by drilling and placing screws in Tatum's vertebrae. Dr. Patel failed to inform Tatum that he planned on inserting the plate and failed to discuss the potential risks prior to surgery. During the procedure, Dr. Patel, or someone under his supervision, drilled through the vertebrae, damaging Tatum's cervical spinal cord and the nerves affecting Tatum's arms and upper extremity. Tatum alleges a reasonable patient would not have consented to the drilling if the risks had been fairly and adequately explained.
On June 13, 1994, after Tatum reported experiencing difficulty swallowing, Dr. Patel performed an additional surgery to remove a dislodged synthes plate because a screw became loosened and protruded into Tatum's esophagus. MUSC provided Tatum with the above services through University Medical Associates (UMA), a part of MUSC's Clinical Practice Plan.
MUSC advised Tatum her symptoms and complaints resulted from various causes other than the above surgical procedures. On January 26, 1995, Tatum first learned Dr. Patel's surgery caused permanent damage to her spinal cord. Tatum has pursued her workers' compensation remedy and has received a final award.
Tatum filed this suit against MUSC alleging Dr. Patel negligently punctured her spinal canal, which caused injury to her cervical spinal cord, and negligently failed to inform her of the risks associated with the procedures employed. Tatum further alleges she did not learn of the puncture until seeking treatment from a secondary source because MUSC failed to notify her of the surgical complications. Tatum's complaint included a loss of consortium claim brought by her husband.
MUSC filed an amended answer arguing the Workers' Compensation Act provided the exclusive remedy because Tatum's injuries arose out of and in the course of her employment. MUSC moved to dismiss pursuant to Rule 12(b)(6), SCRCP, arguing that public entities and their employees cannot exempt themselves from the workers' compensation provisions. MUSC further asserted that under South Carolina Code section 42-15-70 (1976), an employer is not liable for a physician's malpractice, and any malpractice injury is merge
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