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Kneece v. Babcock6/7/2005
rst argues the circuit court erred in granting summary judgment in favor of Dr. Babcock because the circuit court failed to consider that Dr. Babcock "negligently shortened Mr. Kneece's life" by failing to begin cancer treatments earlier. We find this issue is not preserved for appeal.
In order to preserve an issue for appellate review, the issue must have been raised to and ruled upon by the trial court. Holy Loch Distrib., Inc. v. Hitchcock, 340 S.C. 20, 24, 531 S.E.2d 282, 284 (2000). Where a party raises an issue, but the circuit court never rules on it, the party must file a motion to alter or amend the judgment in order to preserve the issue for appellate review. Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991).
The circuit court order granting summary judgment did not address Kneece's theory that Dr. Babcock could be held liable for shortening Mr. Kneece's life. Absent a Rule 59(e) motion to alter or amend the order to receive a ruling on this issue from the circuit court, it is not preserved for our review.
II. "Loss of Chance of Survival" Doctrine
Kneece next alleges recovery in this matter should be allowed under the "loss of chance of survival" doctrine. We disagree.
The South Carolina Supreme Court expressly and unanimously rejected the "loss of chance of survival" doctrine in Jones v. Owings, 318 S.C. 72, 77, 456 S.E.2d 371, 374 (1995). As Chief Justice Toal states in her treatise on South Carolina appellate practice, "the Court of Appeals is an error-correction court, whereas the Supreme Court is a law-giving court. The decisions of the Supreme Court bind the Court of Appeals." Toal, Vafai & Muckenfuss, Appellate Practice in South Carolina, at 12 (2d ed. 2002). See also S.C. Const., art. V. ยง 9 (establishing the jurisdiction of the court of appeals and explaining the binding effect of supreme court opinions); Daniels v. City of Goose Creek, 314 S.C. 494, 498, 431 S.E.2d 256, 260 (Ct. App. 2003) (holding that any modification of supreme court case law must be undertaken by the supreme court).
Therefore, we reject Kneece's contention that the circuit court erred in denying recovery under the "loss of chance of survival" theory.
CONCLUSION
For the foregoing reasons, the circuit court's grant of summary judgment in favor of William H. Babcock, M.D., and South Carolina Oncology Associates, P.A., is hereby
AFFIRMED.
HEARN, C.J., and BEATTY and SHORT, JJ., concur.
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