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David v. McLeod Regional Medical Center8/1/2005
Heard February 1, 2005
AFFIRMED
The underlying case is a medical malpractice action. Willie Mae David (Appellant) appeals the trial court's order granting summary judgment in favor of Respondents. This case was certified from the court of appeals pursuant to Rule 204(b), SCACR. Because Respondents have filed three separate briefs, we recognize that some issues may not apply to all of the Respondents. Nevertheless, we affirm the trial court's order as to all Respondents.
Factual /Procedural Background
Appellant's family doctor found a lesion on the lower lobe of Appellant's left lung. Appellant was referred to Pee Dee Cardiovascular Surgeons for evaluation and then admitted to McLeod Regional Medical Center on March 3, 1998, to undergo a biopsy and possible surgery to extract the lesion.
During the biopsy, Dr. Ken Brusett extracted a sample of the lesion for testing. Dr. H. K. Habermeier, a pathologist, examined the sample and provided an intra-operative preliminary diagnosis of "probable pulmonary blastoma," which is a rare form of lung cancer. As a result of this preliminary diagnosis, Dr. Brusett decided to remove the lower lobe of Appellant's left lung while Appellant was still anesthetized and unconscious. A final pathology report, issued three days after the surgery, concluded that the lesion was not cancerous, but rather, pulmonary endometrioma.
Appellant filed an action alleging medical malpractice, claiming that she suffers from several ailments as a result of the surgery, including chest and back pain, shortness of breath, and anxiety.
Appellant named the following parties as defendants: (1) the hospital where the surgery took place (McLeod Regional Medical Center); (2) the thoracic surgeon who conducted the surgery (Dr. Brusett); (3) Dr. Brusett's practice group (Pee Dee Cardiovascular Surgeons); (4) the pathologist who provided the preliminary diagnosis of "probable pulmonary blastoma" (Dr. Habermeier); and (5) Dr. Habermeier's practice group (Pee Dee Pathology).
Respondents made three separate motions for summary judgment, which the trial judge granted in favor of Respondents. Appellant now raises the following issues for review:
I. Did the trial court err in granting Respondents' motions for summary judgment?
II. Did the trial court err in holding that McLeod Regional Medical Center was not vicariously liable for Appellant's alleged damages?
Law/Analysis
I. Summary Judgment
Appellant argues that the trial court erred in granting summary judgment in favor of Respondents. We disagree.
When reviewing an order granting summary judgment, the appellate court applies the same standard applied by the trial court. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party must prevail as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party. Fleming v. Rose, 350 S.C. 488, 493-494, 567 S.E.2d 857, 860 (2002).
As the trial court recognized, the rules of civil procedure dictate whether or not an affidavit establishes an issue of fact sufficient to defeat a motion for summary judgment. Rule 56(e), SCRCP provides that "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is com
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