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GARNER8/23/1993
This appeal involves a wrongful death action and a survival action brought by the son of the decedent, Lucille Garner, as the administrator of her estate. The trial court dismissed this medical malpractice action on the grounds that it was barred by the statute of limitations. We affirm in part, reverse in part, and remand.
FACTS
On October 1, 1986, Ms. Garner was admitted to Bruce Hospital. Surgery was performed on October 2, 1986. Ms. Garner's son visited her in the hospital and expressed a general dissatisfaction with the care she was receiving. His specific complaints were focused on her nursing care and the lack of respect shown to her by the nursing staff. Ms. Garner continued to complain of discomfort after her discharge and died unexpectedly on October 23, 1986. On November 5, 1986, her son received an autopsy report which revealed the cause of her death to be a previously undiagnosed bowel obstruction. The
On October 20, 1989, the son filed a summons and complaint and delivered the pleadings to the sheriff for service on the defendant hospital and doctors. On October 24, 1989, the sheriff served the summons and complaint on the receptionist of Dr. Creedman, the nurse of Dr. Houck, and agents of Bruce Hospital. The defendants filed their respective answers on November 17, 20, and 21, 1989, but did not raise improper service as a defense. On January 18, 1991, the son filed a motion to add Dr. Palles as a defendant. Dr. Palles was allowed to respond to the motion and raised the three-year statute of limitations applicable to health care providers. S.C. Code Ann. § 15-3-545 (Supp. 1992). The trial court denied the motion to add Dr. Palles based on its determination that any action against him would be barred by the statute of limitations. The physician and hospital defendants moved for summary judgment, also arguing the actions against them were barred by the health care providers' statute of limitations. The trial court granted the motions. The son appeals the denial of his motion to add Dr. Palles and the granting of the defendants' motions for summary judgment.
LAW/ANALYSIS
The son first asserts that this action was timely commenced by reason of his delivery of the summons and complaint in this action to the sheriff. We agree. The health care providers' statute of limitations is as follows:
Any action 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
as defined in Article 2 of Chapter 59 of Title
38 shall 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.
S.C. Code § 15-3-545 (Supp. 1992) (emphasis added).
The trial court found as a matter of law that the son knew or should have known a claim existed at the time of his
A statute of limitations requiring action to be commenced within a time period after the person knew or by exercise of reasonable diligence should have known that he had a cause of action means that the injured party must act with some promptness where facts and circumstances of the injury would put a person of common knowledge and experience on notice that some right of his had been invaded or that some claim against another party might exist. Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301, 278 S.E.2d 333 (1981). The statute of limitations begins to run from this point and not when advice of counsel is soug
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