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JOHNSON v. PHIFER11/9/1992
Heard Oct. 6, 1992.
Decided Nov. 9, 1992.
This case involves application of the statute of limitations for medical malpractice. The trial court granted judgment on the pleadings to the physician. The patient appeals. We affirm.
The patient, Renee Johnson, alleges she consulted Dr. Allie G. Phifer, a dentist, for dental and orthodontic treatment. The period of treatment began in April 25, 1974, and ended on May 10, 1977. During the course of treatment, Dr. Phifer extracted several teeth and applied braces to other teeth. The complaint
The trial court held Miss Johnson's cause of action accrued when she discovered it in April of 1987. Further, the court held Section 15-3-545 was applicable to the case when the claim accrued and the claim was barred because Miss Johnson did not institute her suit within six years from the date of occurrence as required under the statute.
S.C. Code Ann. ยง 15-3-545 deals with actions for
[For causes for action arising or accruing prior to April 5,
1988, the following provisions will apply:]
Any action to recover damages for injury to the person
arising out of any ... dental treatment ... shall be commenced
within three years from the date of treatment ...
giving rise to the cause of action or three years from the
date of discovery or when it reasonably ought to have
been discovered, not to exceed six years from date of occurrence
... provided, however, that the provisions of this
section shall apply only to causes of action which arise
after June 10, 1977, and, as to causes of action which
arise prior to June 10, 1977, the statute of limitations
existing prior to June 10, 1977 shall apply. (Emphasis
added.)
The six-year repose limitation is an outer limit for a
Miss Johnson argues the court erred in its application of the statute of limitations. She contends her cause of action arose at the time of the alleged negligent treatment which was before June 10, 1977. Therefore, she asserts the six-year statute of limitations in effect before the date applies to her as referenced in Section 15-3-545. Moreover, she contends she may apply the "discovery rule" to her case. Since she did not discover the injury resulting from the alleged negligence until 1987, she brought her claim within six years from that time and complied with the applicable statute of limitations. See Gattis v. Chavez, 413 F. Supp. 33 (D.C.S.C. 1976).
We agree with the trial court's conclusion that Miss Johnson's cause of action arose in April of 1987 when she discovered the alleged negligence and not when the alleged treatment took place. The South Carolina Supreme Court recognized the accrual upon discovery rule for professional negligence cases in Mills v. Killian, 273 S.C. 66, 254 S.E.2d 556 (1976). This court applied the discovery rule to a medical negligence case in Wilson v. Shannon, 299 S.C. 512, 386 S.E.2d 257 (Ct.App. 1989). In Wilson this court concluded " nder the discovery rule, the statute [of limitations] does not run from the date of the negligent act, but from the date when the injury resulting from the wrongful conduct either is discovered or may be discovered by the exercise of reasonable diligence." Id. at 513, 386 S.E.2d at 258.
Miss Johnson's argument has her claim accruing at two separate times. First, she asserts it accrues at the date of the alleged negligent treatment, enabling her to apply the pre-June 1977 statute of limitations which did not have a repose provision. Second, she also asserts it accrued when she discovered the injury resulting from the alleged ne
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