Opinion
C/A No. 4:18-1863-MGL-KDW
04-02-2019
Linda Nichols, Plaintiff, v. United States of America, Defendant.
Report and Recommendation
This matter is before the court on the Motion to Dismiss filed by Defendant United States of America ("United States" or "Defendant"), ECF No. 34, and the Motion for Summary Judgment and Motion for Default filed by Plaintiff Linda Nichols ("Nichols" or "Plaintiff"), ECF No. 37. Plaintiff is self-represented. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Because the pending motions are dispositive, this Report and Recommendation ("R&R") is entered for the district judge's consideration. For the reasons that follow, it is recommended that Plaintiff's Motion for Summary Judgment/Default, ECF No. 37, be denied, and Defendant's Motion to Dismiss, ECF No. 34, be granted in part and denied in part. I. Background
A. Nichols I
Plaintiff originally filed an action in state magistrate court seeking damages she allegedly sustained during a dental procedure. That matter was removed to this court. Nichols v. United States of America, Civ. Action No. 4:17-1621-RBH (D.S.C.) ("Nichols I"). That matter was dismissed without prejudice for failure to exhaust administrative remedies. Nichols I, ECF No. 61. In dismissing Nichols I, the court noted Plaintiff had exhausted her administrative remedies subsequent to beginning Nichols I and directed the Clerk of Court to open a new action as of May 4, 2018, the date Plaintiff had submitted a "Complaint for Damages" in Nichols I. See id. at 4-5; see also ECF No. 44 in Nichols I (R&R adopted by ECF No. 61) for further detail regarding Nichols I. The Clerk of Court filed Plaintiff's Complaint for Damages as ECF No. 1 in the instant action.
B. The instant action
After the requisite initial review by the undersigned, service of Plaintiff's pro se Complaint on Defendant United States was permitted. ECF No. 29. Plaintiff's Complaint includes causes of action for dental malpractice, lack of informed consent, dental battery, and negligence. ECF No. 1. The United States was served on August 29, 2018, making October 29, 2018 the deadline by which the United States was required to file a responsive pleading to the Complaint. See ECF No. 33. On October 29, 2018, the United States filed the Motion to Dismiss now under consideration. ECF No. 34. As Plaintiff is proceeding pro se, on October 30, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the dismissal procedure and the possible consequences if she failed to adequately respond to the Motion to Dismiss. ECF No. 35. Plaintiff filed her response to the Motion to Dismiss, ECF No. 39, and Defendant filed its reply, ECF No. 40. Several weeks prior to filing her opposition to the Motion to Dismiss Plaintiff also filed her own dispositive motion, styled Plaintiff's Motion for Summary Judgement and Notice of Motion for Default Judgment. ECF No. 37. Defendant responded to Plaintiff's Motion for Summary Judgment/Default, ECF No. 38, and Plaintiff filed a reply in support of her motion, ECF No. 41. II. Relevant facts
Plaintiff's Complaint centers around an April 3, 2017 dental appointment with Dr. Alena Sabzwari, who was employed by the Little River Dental Center (the "Center"), an entity receiving federal funds. Compl. ¶¶ 1, 5. Plaintiff alleges she "sustained injury as a result of surgery of a tooth that was extracted and broken off at the root during a dental appointment." Compl. ¶ 5. Plaintiff alleges the Center misdiagnosed a dental condition, which resulted in the needless extraction of teeth. Compl. ¶ 6. Defendant also alleges Dr. Sabzwari wrongly administered pain relief; performed a "contraindiciated surgical procedure" for which Defendant did not receive appropriate informed consent; mistreated an infection; and failed to provide a timely referral, resulting in an unwarranted delay in treatment. Compl. ¶¶ 7-12. III. Applicable law
A. The court has jurisdiction under the Federal Tort Claims Act ("FTCA")
Plaintiff brings this action alleging negligence of federal employees while acting within the scope of their office; therefore, the FTCA is controlling. See 28 U.S.C. § 1314(b) and 28 U.S.C. § 2671 et seq. In FTCA actions, a remedy against the United States is exclusive of any other civil action or proceeding for money damages against the employee whose act or omission gave rise to the claim. 28 U.S.C. § 2679(b)(1). Pursuant to the FTCA, "[t]he United States shall be liable . . . relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Defendant acknowledges the FTCA gives the court jurisdiction over Plaintiff's Complaint.
On page one of Defendant's Motion, it lists several grounds for the Motion, including "fail[ure] to exhaust any claim of medical negligence." ECF No. 34 at 1. However, nowhere in its memorandum does Defendant make any failure-to-exhaust argument. As made clear in the Order ending Nichols I, Plaintiff has now exhausted her FTCA administrative remedies.
B. Pro se pleadings
Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Further, "a court may not act as [a pro se] litigant's advocate and construct legal arguments that the plaintiff has not made[.]" Warren v. Tri Tech Labs., Inc., 993 F. Supp. 2d 609, 613 (W.D. Va.), aff'd, 580 F. App'x 182 (4th Cir. 2014) (citing Brock v. Carroll, 107 F.3d 241, 242-43 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).
C. Motion to Dismiss, Rule 12(b)(6)
"A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court measures the legal sufficiency by determining whether the complaint meets the Rule 8 standards for a pleading. Id. The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his
"entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . .550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." (citing Twombly, 550 U.S. at 556)). When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to "'draw all reasonable inferences in favor of the plaintiff.'" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only "labels and conclusions" or "naked assertion[s]" lacking "some further factual enhancement" will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At bottom, the court is mindful that a complaint "need only give the defendant fair notice of what the claim is and the grounds upon which it rests." Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010) (internal quotation marks omitted).
D. What may be considered on a motion to dismiss; conversion to motion for summary judgment
As the Fourth Circuit has explained,
In reviewing a Rule 12(b)(6) dismissal, we may properly take judicial notice of matters of public record. Hall v. Virginia, 385 F.3d 421, 424 (4th Cir. 2004) (noting it was proper during Rule 12(b)(6) review to consider "publicly available [statistics] on the official redistricting website of the Virginia Division of Legislative Services.") (citing Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986)) ("Although this case comes to us on a motion to dismiss . . . , we are not precluded in our review of the complaint from taking notice of items in the public record . . . . ."). We may also consider documents attached to the complaint, see Fed. R. Civ. P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic. See Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006).Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). However, if the court goes beyond these documents in considering a Rule 12(b)(6) motion, the court is considered to have converted the motion into one for summary judgment. Fed. R. Civ. P. 12(b), 12(d), 56. "Such conversion is not appropriate where the parties have not had an opportunity for reasonable discovery." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448-49 (4th Cir. 2011) (internal quotation and citation omitted). Further, statements by counsel that raise new facts constitute matters beyond the pleadings and cannot be considered on a Rule 12(b)(6) motion. Id. at 449. Additional statements by counsel that may not be considered include not only those of the pleader's counsel but also statements of defense counsel who is seeking dismissal. Id. at 449 (citing Dolgaleva v. Va. Beach City Pub. Sch., 364 F. App'x 820, 825 (4th Cir. 2010), in which district court erroneously dismissed complaint based on defendant's statements in hearing that disputed complaint's allegations). IV. Analysis
A. Plaintiff's "Motion for Summary Judgement and Notice of Motion for Default Judgment," ECF No. 37.
1. Defendant is not in default.
The court first considers the pro se Plaintiff's argument that Defendant is in default. Plaintiff argues Defendant's October 29, 2018 responsive pleading (Motion to Dismiss) was not filed within the 60-day timeframe Defendant had to respond to her Complaint. ECF No. 37. The court disagrees and recommends Plaintiff's Motion for Default be denied.
Both parties acknowledge that Plaintiff served Defendant with the Complaint on August 28, 2018, and that Defendant had 60 days within which to respond to the Complaint. See ECF No. 33 at 2 (Executed Summons indicating Defendant served on August 28, 2018). Pursuant to Federal Rule of Civil Procedure 6(a)(1)(A), the day of the event that triggers the period is excluded. Thus, the computation of time began on August 29, 2018. Sixty days from August 29, 2018 was Sunday, October 28, 2018. Under Rule 6(a)(1)(C), if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. The United States filed its Motion to Dismiss on Monday, October 29, 2018. ECF No. 34.
Defendant timely responded to Plaintiff's Complaint. The request for default should be denied.
2. Plaintiff's "Motion for Summary Judgement" is premature. Exhibits will not be considered.
Plaintiff's Motion also seeks judgment as a matter of law, citing to Federal Rule of Civil Procedure 56 and arguing Defendant has "failed to present a factual position" and has not supported facts pursuant to Rule 56(c). ECF No. 37 at 2-3. Plaintiff also attaches several exhibits to her Motion: Exhibit 1 is a two-page medical record from her April 3, 2017 treatment at the Center; Exhibit 2 is an unsigned, unnotarized affidavit from her husband, John M. Nichols, Sr.; Exhibit 3 are treatment records and Surgical Consent Form from her April 3, 2017 visit to Thomas F. Rollar, Jr., DMD. ECF No. 37-1. In responding to Plaintiff's Motion, Defendant also attaches an exhibit: the two-page "Consent Form for Tooth Extraction" Plaintiff signed at the clinic on April 3, 2017. ECF No. 38-1.
At this juncture, the court finds it inappropriate to consider Plaintiff's Motion as one for "summary judgment" or to consider the documents submitted as exhibits. No discovery has yet taken place, as it is the court's usual practice to delay the issuance of a scheduling order until pleadings-based motions are decided. Accordingly, the undersigned finds it inappropriate to consider Plaintiff's Motion as one for summary judgment. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448-49 (2011) (noting that, ordinarily, summary judgment is inappropriate "where the parties have not had an opportunity for reasonable discovery.").
In so recommending, the court acknowledges that Plaintiff herself made the Rule 56 motion and included exhibits and that Defendant, the nonmoving party, did not object. However, given Plaintiff's pro se status and the procedural posture of this case, the court finds it appropriate not to consider the limited evidence provided by the parties at this time. Rather, should this case survive Defendant's pleadings-based challenge, the parties will be able to conduct discovery and, at an appropriate time, submit proper motions for summary judgment. On this basis, it is recommended that Plaintiff's Motion for Summary Judgment be denied without prejudice.
B. Defendant's Motion to Dismiss, ECF No. 34
In considering Plaintiff's FTCA claims the court applies the substantive tort law of the state where the act or omission occurred. 28 U.S.C. § 1346(b)(1). Because the Government's acts or omissions purportedly occurred in a federally funded clinic located in South Carolina, the substantive law of South Carolina indisputably controls.
In South Carolina, "[t]o establish a cause of action in negligence, a plaintiff must prove the following three elements: (1) a duty of care owed by defendant to plaintiff; (2) breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty." Bloom v. Ravoira, 529 S.E.2d 710, 712 (S.C. 2000). Plaintiff is required to show negligence with reasonable certainty, not through mere conjecture, and he may not attempt to prove negligence through the doctrine of res ipsa loquitur. Ajaj v. United States, 479 F. Supp. 2d 501, 549 (D.S.C. 2007). When, as here, the complaint involves medical malpractice, the South Carolina Supreme Court requires that a plaintiff alleging medical malpractice must provide evidence showing (1) the generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendant's field of medicine under the same or similar circumstances, and (2) that the defendant departed from the recognized and generally accepted standards. David v. McLeod Reg'l Med. Ctr., 626 S.E.2d 1, 4 (S.C. 2006). Further, "the plaintiff must use expert testimony to establish both the required standard of care and the defendant's failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant." Pederson v. Gould, 341 S.E.2d 633, 634 (S.C. 1986).
The focus of Defendant's Motion to Dismiss is the requirement under South Carolina law that a plaintiff claiming medical malpractice file an expert affidavit with his Complaint. Section 15-36-100(B) of the South Carolina Code provides:
Except as provided in Section 15-79-125, in an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of South Carolina and listed in subsection (G), the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the
factual basis for each claim based on the available evidence at the time of the filing of the affidavit.S.C. Code Ann. § 15-36-100(B) (emphasis added). Subsection (G) includes dentists among the licensed professions as to whom affidavits must be provided in professional negligence claims. S.C. Code Ann. § 15-36-100(G). Subsection (C) contains several exceptions to affidavit requirement:
(C)(1) The contemporaneous filing requirement of subsection (B) does not apply to any case in which the period of limitation will expire, or there is a good faith basis to believe it will expire on a claim stated in the complaint, within ten days of the date of filing and, because of the time constraints, the plaintiff alleges that an affidavit of an expert could not be prepared. In such a case, the plaintiff has forty-five days after the filing of the complaint to supplement the pleadings with the affidavit. Upon motion, the trial court, after hearing and for good cause, may extend the time as the court determines justice requires. If an affidavit is not filed within the period specified in this subsection or as extended by the trial court and the defendant against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim. The filing of a motion to dismiss pursuant to this section, shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.S.C. Code Ann. § 15-36-100.
(2) The contemporaneous filing requirement of subsection (B) is not required to support a pleaded specification of negligence involving subject matter that lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.
Here, Defendant seeks dismissal of Plaintiff's Complaint arguing that she has not stated a viable dental malpractice claim under South Carolina law because she did not file an expert affidavit contemporaneously with her Complaint. Further, without such expert testimony, Defendant argues, Plaintiff has not articulated how medical personnel deviated from their duty to provide reasonable care or how such deviation was the actual and proximate cause of her purported injuries. See ECF No. 34 at 12.
In responding to Defendant's Motion, Plaintiff submits that the common-knowledge exception to the expert-affidavit requirement applies to her case. ECF No. 39. While her pro se filing does not clearly delineate between her various causes of action, her argument seems to be that she should be allowed to proceed as to her lack-of informed-consent cause of action because that claim would be within the common-knowledge exception to the statutory requirement of an expert affidavit in malpractice actions. See id. at 2. Plaintiff's focus is on the alleged lack of informed consent; she does not explain how her malpractice claim itself should be considered to fall within the common-knowledge exception.
On Reply, Defendant points out that Plaintiff has not focused on her claims of dental malpractice, dental battery, and negligence in asserting she needs not provide an expert affidavit. ECF No. 40. Accordingly, Defendant argues, dismissal is appropriate as to these claims. As to the cause of action for informed consent, Defendant looks to Plaintiff's signed consent form (provided in response to Plaintiff's Motion for Summary Judgment), ECF No. 38-1, as evidence that Defendant obtained informed consent. Accordingly, Defendant argues, all claims should be dismissed. ECF No. 40.
1. Plaintiff's causes of action for dental malpractice, dental battery, and negligence
As to Defendant's argument that the expert-affidavit requirement applies to and requires dismissal of Plaintiff's causes of action for dental malpractice, dental battery, and negligence, the undersigned agrees with Defendant. Numerous courts have considered this issue and enforced this statutory requirement in cases where plaintiffs bring causes of action for breach of professional duties. See e.g., Thomas v. United States, No. 218CV00671RMGMGB, 2019 WL 718552, at *4 (D.S.C. Jan. 28, 2019), report and recommendation adopted, No. CV 2:18-00671-RMG, 2019 WL 643484 (D.S.C. Feb. 15, 2019) (dismissing without prejudice plaintiff's FTCA medical malpractice claim for failure to file the requisite expert affidavit); Burris v. United States, Case No. 2:14-cv-00430-MGL-WWD, 2014 WL 6388497, at *2 (D.S.C. Nov. 14, 2014) (same); Peterson v. Stephens, No. CA 0:12-1366-GRA-PJG, 2013 WL 1386673, at *5 (D.S.C. Mar. 7, 2013), report and recommendation adopted, No. 0:12-CV-01366-GRA, 2013 WL 1386676 (D.S.C. Apr. 4, 2013) (referencing S.C. Code Ann. § 15-36-100(B)) ("South Carolina law requires a plaintiff to file an affidavit of an expert witness with his complaint when asserting a claim of professional negligence against a professional licensed or registered with the State of South Carolina."); Alexander v. Rite Aid Corp., No. 4:11-CV-01406-RBH, 2012 WL 80458, at *2 (D.S.C. Jan. 11, 2012) (acknowledging the filing requirements of section 15-36-100 that include an affidavit of an expert witness).
Plaintiff makes no clear argument to the contrary. Nothing in her argument suggesting a lay standard as to the informed-consent claim persuades the undersigned that she should be exempted from the requirement of providing expert testimony as to her claims of dental malpractice. Further, the undersigned notes that South Carolina does not recognize a separate cause of action for "dental battery." See Linog v. Yampolsky, 656 S.E.2d 355, 358 (S.C. 2008) ("[N]o independent cause of action for medical battery exists in South Carolina."). Plaintiff's fourth cause of action for "negligence" includes claims directly related to Plaintiff's treatment (Compl. ¶¶ 27, 29-32) and reiterates her lack-of-informed consent claim (id. ¶ 28). Accordingly, the fourth cause of action is subsumed by the others. Plaintiff's first, third, and fourth causes of action should be dismissed. Plaintiff's failure to provide the affidavit of an expert witness as to the applicable standard of care and how it allegedly was breached is fatal to these malpractice-based causes of action. Section 15-36-100(B) required that Plaintiff file "as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit." Id. (emphasis added). She has not done so, nor has she pointed to any case suggesting the malpractice claim itself could be subject to the common-knowledge exception to the affidavit requirement.
Finally, the court notes Plaintiff's general "request [that] the court allow [her] to subpoena Dr. Rollar, Oral Surgeon, (referred by the defendant to complete the surgery) to testify as an expert witness during trial." ECF No. 39 at 2 (emphasis in original). As the statute makes clear, the time for expert testimony—in the form of an affidavit—is at the time of the complaint. Any request to issue a trial subpoena to Dr. Rollar (or any witness) is premature and, in any event, would not remedy the failure to comply with the statutory requirement that an expert affidavit be submitted in support of a complaint alleging medical (including dental) malpractice. S.C. Code Ann. § 15-36-100(B).
Defendant's Motion to Dismiss should be granted as to Plaintiff's first (dental malpractice), third (dental battery), and fourth (negligence) causes of action. The court separately considers the parties' arguments as to Plaintiff's second cause of action for lack of informed consent.
2. Plaintiff's Lack-of-Informed-Consent Claim
Plaintiff argues that her lack-of-informed-consent claim falls within the "common knowledge" exception to the affidavit requirement. See, e.g., Brouwer v. Sisters of Charity Providence Hosps., 763 S.E.2d 200, 203-04 (S.C. 2014) (noting § 15-36-100(c)(2) exception to affidavit requirement when the claim is "of common knowledge or experience so that no special learning is needed to evaluate the defendant's conduct." (citing Carver v. Med. Soc'y of S.C., 334 S.E.2d at 125, 127 (S.C. Ct. App. 1985)). This exception occurs when "the defendant's [alleged] careless acts are quite obvious, [such that] the plaintiff need not present expert testimony to establish the standard of care." Brouwer, 763 S.E.2d at 204.
Plaintiff cites Hook v. Rothstein, a South Carolina case that sets out a physician's duty under the doctrine of informed consent. Hook provides that a physician has a duty to disclose "(1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not carried out, and (6) the existence of any alternatives to the procedure." 316 S.E.2d 690, 694-95 (S. C. Ct. App. 1984). Plaintiff does not discuss South Carolina law regarding the common-law exception. Rather, she cites a Connecticut case and submits that, "[u]nlike a medical malpractice claim, a claim for lack of informed consent is determined by a lay standard of materiality, rather than an expert medical standard of care which guides the trier of fact in its determination." ECF No. 39 at 2 (citing Logan v. Greenwich Hospital Ass'n, 191 Conn. 282, 293, 465 A.2d 294 (1983)).
Plaintiff does not explain the significance of the Connecticut case, nor does she submit a South Carolina case as authority for her argument that the common-knowledge exception to the affidavit requirement applies to her lack-of-informed consent cause of action. Rather, citing another Connecticut case, Godwin v. Dansbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 144-45, 757 A.2d 516 (2000), Plaintiff argues,
The focus in an action for lack of informed consent is often a credibility issue between the physician and the patient regarding whether the patient has been, or should have been, apprised of certain risks prior to the medical procedure, [and] it is axiomatic that an expert is, therefore, not required in an informed consent case for the plaintiff to establish a prima facie case in order that the case may be submitted to either the judge or the jury.ECF No. 39 at 3-4. Plaintiff also cites to what seems to be some hornbook-type discussion of the standard for establishing lack of informed consent and cites to several cases without citations recognizable to the undersigned. Id. at 4-5.
In response to Plaintiff's argument regarding informed consent, Defendant cites to no South Carolina law as to the legal issue of whether such a claim may be presented without an affidavit under the common-knowledge exception. Rather, Defendant looks to Plaintiff's signed consent form, ECF No. 38-1 (provided as an exhibit in responding to Plaintiff's Motion for Summary Judgment) as evidence that Defendant obtained informed consent. ECF No. 40. As discussed above, however, the court finds it would be premature to consider any documents presented by either party at this pleadings-stage review. Further, in Defendant's principal brief it acknowledges the existence of the common-knowledge exception but submits it is inapplicable here because "decisions regarding whether her dental care was proper would require medical expertise, not lay knowledge." ECF No. 34 at 10 (citing Brouwer).
However, in Plaintiff's memorandum, she makes a separate argument that the common-knowledge exception applies to her cause of action concerning informed consent. In view of Defendant's failure to provide legal argument specifically to the effect that the expert-affidavit requirement applies to a lack-of-consent cause of action and that the common-knowledge exception does not apply to lack-of-consent claims, that portion of the Motion to Dismiss should be denied. Defendant's attempt to look beyond the pleadings stage and seek dismissal based on a signed consent form—particularly one Plaintiff does not concede is applicable here—should not be permitted.
In making this recommendation, the undersigned notes neither Plaintiff nor Defendant has pointed to a controlling South Carolina case that concerning whether the "common knowledge" exception to the expert-affidavit-filing requirement would be applicable to a lack-of-informed consent cause of action. Here, Defendant seeks dismissal, yet Defendant has not set out a cogent legal argument sufficient to convince the undersigned that this portion of Plaintiff's claim should be dismissed at this juncture. As noted above, Defendant's fact-based argument based on evidence not appropriately before the court will not now be considered. Based on the arguments before the court, it is recommended that Defendant's Motion to Dismiss be denied as to Plaintiff's lack-of-informed consent cause of action. By making this recommendation the undersigned is offering no opinion as to the potential success of Plaintiff's lack-of-informed consent cause of action. V. Conclusion and Recommendation
Based on the foregoing, it is recommended that Plaintiff's Motion for Summary Judgment and Notice of Motion for Default Judgment, ECF No. 37, be denied; and that Defendant's Motion to Dismiss, ECF No. 34, be granted in part (as to Plaintiff's First, Third, and Fourth Causes of Action) and denied in part (as to Plaintiff's Second Cause of Action).
"A dismissal for failure to comply with S.C. Code 15-36-100 is without prejudice." Gamez-Gonzalez v. United States, Case No. 4:14-2668-JMC-TER, 2017 WL 3084488, at *3 n.5 (D.S.C. May 17, 2017).
IT IS SO RECOMMENDED. April 2, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge