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Despite a recent ruling by Florida appeals court that removed limits on the amount of damages a person can receive in personal injury medical malpractice lawsuits, (1) South Carolina has a statute that specifically limits or “caps” the amount of money that can be awarded to a plaintiff in a medical malpractice cases. In other words, even after a jury agrees that a doctor or hospital has committed malpractice, South Carolina law limits the actual amount of damages that the a person can receive. (2)

South Carolina defines medical malpractice into two main categories: economic and non-economic. Economic damages typically consist of payment for past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses that can be attributed to the doctor or hospital error on which the malpractice lawsuit is based. Non-economic damages include compensation for pain and suffering, emotional distress, and the loss of enjoyment of life that result from the malpractice. Non-economic damages are considered to be more subjective from case to case, and they’re not so easy to capture with a dollar amount.

South Carolina’s medical malpractice damages cap applies only to non-economic damages. Specifically:

  • There is a $350,000 cap on non-economic damages in medical malpractice cases against a single care provider or institution.
  • There is a $1.05 Million cap on non-economic damages in cases against more than one defendant. Moreover, even in these cases, no a single care provider or hospital can be ordered to pay more than $350,000.

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1. North Broward Hospital District v. KALITAN, No. 4D11-4806 (Fla. Dist. Ct. App. July 1, 2015).

2. S.C. Code of Laws Title 15, Chapter 32.

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Estate planning is an often overlooked but important step for almost anyone. From a legal position, everyone has an “estate plan” – state laws makes this a certainty.  The estate plan established by the state in which you die simply may not be the plan that you had in mind, or that your family would have preferred.  This means that if you do not have an effective estate plan at your death, the distribution of your assets will be dictated by the inheritance laws, also known as “intestacy laws.” Such laws vary from state to state but typically leave percentages of your assets to various family members. There is always a remote chance that these laws will accomplish what you would have intended – but not likely.

Simply said, a carefully considered Estate Plan, as provided by the Bostic Law Firm, ensures that your loved ones will be provided for in the event of your passing or incapacitation. At the same time, the benefits of estate planning can go much further than simply ensuring that beneficiaries are properly named and classified. Some of the most important of these benefits include:

  • Reduced tax liability for inheritances
  • Provisions for guardianship of children or incapacitated dependents
  • Reduced likelihood of estate or probate litigation
  • Provisions for end-of-life care

These are just some of the many different ways in which estate planning can benefit both the individual making the plans as well as their loved ones.

Not having a formal Estate Plan, or succumbing to Do-it-Yourself web-based solutions, is a recipe for disaster. Estate planning documents should represent the culmination of a well thought out financial and estate plan. Moreover, legal formalities for a validly written and executed document will vary from state to state.  Internet sites can provide you with documents but they cannot provide you with advice that fits you in the context of your specific financial and personal life.

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A March 2015 decision by the Superior Court of New Jersey, Appellate Division, will have far-reaching ramifications for the rights of residents’ in long-term care facilities in the United States. The court held in Ptaszynski v. Atlantic Health Systems, Inc., (1) that a portion of the Nursing Home Responsibilities and Residents’ Rights Act [NHA] (2) effectively bars plaintiffs from bringing claims predicated upon a facility’s violation of a state or federal statute, rule, regulation or guideline.

For families with loved ones in Nursing Homes, this ruling prevents a private citizen bringing a claim against a facility for a violation of a nursing home resident’s rights; only the Department of Health can file such an action. Among other things, this ruling could apply when a nursing home requires a security deposit and sets forth requirements concerning the use and return of those deposits, despite the fact that Section 30:13-4.2 of the NHA provides that “a person shall have a cause of action against the nursing home for any violation of this act.”

Arguing that the phrase “this act” applied only to the amended legislation enacted in 1991 and not the whole of the NHA, the court held:

There is no indication that, in enacting the amendments to the NHA, the Legislature intended to confer upon nursing home residents the ability to bring actions to enforce any violation of the NHA. The 1991 legislation imposed upon nursing homes new, specific requirements pertaining to security deposits and allowed residents to bring actions to enforce those requirements, not other responsibilities that nursing homes have under the law.

The ruling that plaintiffs can no longer use N.J.S.A. 30:13-4.2 to assert a cause of action against long-term care providers essentially bars all future claims for failure to comply with state and federal statutes, rules, guidelines, and regulations. Ptaszynski also prunes many claims asserted by a resident or his/her family who seek to enforce a facility’s “responsibilities.” This effectively removes any possibility of cost shifting or punitive damages for violations of the state and federal statutes, rules, and guidelines so often cited in nursing home negligence complaints.

The impact of this ruling is important for Nursing Home residents and their families. After Ptaszynski, it will be much more difficult for a plaintiff to secure punitive damages, fees and cost shifting because residents are now only permitted to bring claims for violations of the actual “rights” enumerated under the NHA, rather than the facility’s “responsibilities,” which are often pinned to violations of rules and regulations. Indeed, many complaints in nursing home negligence actions often predicate a cause of action for negligence and the facility’s alleged violations of state or federal statutes, rules or guidelines. Under Ptaszynski, such claims will no longer be permitted.

Notes:
1. Ptaszynski v. Atlantic Health Systems, Inc., 2014 WL 8187238 (N.J. Super. App. Div. March 20, 2015).
2. § 30:13-4.2
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lonely-dog-1444197-mThe South Carolina Supreme Court decision in the case of Hossenlopp v. Cannon, 329 SE 2d 438 (1985) was a historic opinion regarding the nature of how to treat dog bite lawsuits under South Carolina law.

In the case, a complaint was filed on behalf of a four-year-old boy, who was allegedly attacked by a dog owned by the defendants. The attack resulted in 19 puncture wounds, which necessitated sutures, surgery, and hospitalization.

The claim alleged negligence on behalf of the owners in both keeping a dangerous animal with knowledge of its dangerous propensities, allowing the dog to roam around at large in violation of the law, and in failing to restrain the animal.

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keysThe South Carolina Supreme Court recently heard an appeal of a case involving a car accident where a young boy was severely injured. In the case, Green v. Auto. Ass’n Auto & Property, Inc., 756 SE 2d 897 (2014), the father of the child injured was the insured owner of two cars that were both insured to him in Florida.

One of the cars was registered in Florida, but the other was registered in South Carolina. The insured maintained a Florida driver’s license because he said he traveled to the state regularly to see his parents. Despite maintaining the driver’s license, registration, and insurance policy in Florida, testimony at trial claimed that the insured lived continuously in South Carolina for several years, including at the time of the car accident.

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An announcement was recently made regarding a potential settlement deal with two company executives in a federal lawsuit stemming from a chemical spill last year. The judge involved in the action was reportedly informed of the settlement agreement, made on behalf of the individuals alleging injury as a result of the spill. A statement regarding more specific terms of the settlement is expected to be revealed at a later time.medical-equipment-1342025-m

The lawsuit, which was filed in December, listed at least four different companies as defendants for their alleged failure to prevent the spill from occurring. The suit claims that the companies could have potentially prevented the spill by taking better precautionary measures and complying with relevant regulations.

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ladder-1390167-mIn a recent federal case, Lori Yankowitz v. D.R. Horton, Inc., SC Dist. Ct. (2015), a woman sued the company that owned a model home she viewed.

The plaintiff was reportedly viewing a model home when she tripped down a step. She sued the owners of the premises, seeking punitive damages for pain and suffering, bodily injury, medical expenses, embarrassment, and other claims.

The cause of action arose under negligence, alleging that the landowners were responsible for her injuries.

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caduceus-1219484-mLast month, on behalf of his deceased mother, a plaintiff filed a lawsuit alleging liability for personal injury and wrongful death following the painful death of his mother, who was a victim of uterine cancer.

Specifically, the lawsuit alleged excessive unreasonable conduct and failure to adequately warn the victim of the dangers of morcellation. It reportedly seeks damages for conscious pain and suffering, medical expenses, and lost wages, which occurred a year following her exposure to morcellation.

The plaintiff’s mother reportedly underwent a surgical procedure intended to remove some questionable fibroid tissue that had been growing on her uterine and broad ligaments. The surgeon used the Storz Morcellator during the two different procedures that were performed.

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apartment-1226024-mIn a recent South Carolina Court of Appeals case, Armstrong v. Thompson, SC Ct. App (2015), the court apparently had before it an appeal stemming from a summary judgment motion in a landlord-tenant premises liability case.

The facts in the opinion were sparse, since the court of appeals decided to affirm the summary judgment award. Summary judgment is granted when there is no issue of material fact on which the non-moving party can prevail. In this case, based upon what the court said, we can infer that there was some issue with the fact that the purported danger that apparently injured the plaintiff was within the plaintiff’s care as a tenant, and therefore liability did not attach to the landlord for a failure to maintain the relevant premises in a safe manner.

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door-28-9316-mIn a recent premises liability case, Lynch v. Carolina Self Storage Centers, Inc., 760 SE 2d 111 (2014), the South Carolina Court of Appeals had to decide on the issue of several appeals following a trial and jury verdict.

The plaintiff in the case brought a premises liability lawsuit against the storage facility after a metal door closed onto her heel, causing a deep wound, which eventually led to her Achilles tendon rupturing and later becoming infected, which necessitated several surgeries and extensive medical expenses. The lawsuit alleged that the storage facility was negligent in failing to maintain the door in a reasonably safe condition or warn of its dangerous condition. The storage facility argued that the extent of her injuries was not due to negligence on its part, but instead the plaintiff’s failure to follow her physician’s orders to stay off of the injured foot and keep her cast dry.

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