South Carolina Case Law
JONES v. DOE, 4184 (S.C.Ct.App. 12-18-2006) Annie Lee
Jones, individually, and as Personal Representative
Applicant for the Estate of Katherine Elaine Jones,
deceased, and on behalf of her minor children and heirs
Khadijah Jones, Keyia Sanders, Robert Canty and Da-Nayia
Sailes, Appellant, v. John or Jane Doe (unknown physician),
Spartanburg Regional Medical Center, Respondents. Opinion
No. 4184. Court of Appeals of South Carolina. Heard
November 7, 2006. Filed December 18, 2006.
Appeal From Spartanburg County. John C. Hayes, III, Circuit
Court Judge.
Theo W. Mitchell, of Greenville, for Appellant.
Perry D. Boulier, of Spartanburg, for Respondents.
AFFIRMED
GOOLSBY, J.
This is a medical malpractice case. Annie Lee Jones
(Jones), individually and on behalf of the estate of
Katherine Elaine Jones (Katherine), contends the trial
court erred in failing to grant her motion for a
continuance and in granting summary judgment to the
defendants in this action. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 9, 2001, Katherine was admitted to Spartanburg
Regional Medical Center (SRMC) for the birth of her child.
The child was delivered by cesarean section the same day.
Katherine was discharged on November 12, 2001; however, the
child remained under medical care at SRMC. According to a
postpartum discharge form that Katherine had signed, she
was instructed to return to SRMC on November 19, 2001, for
an incision check.
During the early hours of November 17, 2001, Katherine was
found dead in her apartment. Based on autopsy results, it
was determined Katherine “died as a result of internal
hemorrhage secondary to partial dehiscence” of the uterine
incision from her cesarean section. The dehiscence of this
incision resulted in internal bleeding that caused her
death.[fn1]
On October 31, 2002, Jones, as special administrator of
Katherine’s estate, filed this wrongful death and survival
action, claiming SRMC employees committed medical
malpractice resulting in Katherine’s death. The lawsuit was
filed against SRMC and “John or Jane Doe (unknown
physician)” (collectively Defendants).
In her deposition, Jones testified Katherine was in good
spirits when she left SRMC and did not complain about any
physical problems resulting from the cesarean section. A
day or two later, however, Katherine complained to Jones in
a telephone conversation that her stomach hurt and her feet
were swelling. Although Jones told Katherine to go to the
hospital if the pain became severe and even offered to drive
her there, Katherine said she would be all right.
Priscilla Jones, Katherine’s sister, stated in an affidavit
that she visited Katherine almost every day after Katherine
returned home from SRMC. According to Priscilla, Katherine
complained regularly to her about feeling cold and having
swollen feet after the procedure. In addition, Priscilla
stated she heard Katherine, during a visit with her newborn
child at SRMC, make similar complaints to “attending
medical staff,” whom Priscilla did not otherwise identify.
In her deposition, Priscilla similarly testified she saw
Katherine every day from the time she was discharged to the
time of her death and the only complaints Katherine had
concerned the swelling of her feet. Although Priscilla also
testified she was present when Katherine called her doctor
to make an appointment, she only heard Katherine say her
feet were swollen.
Minnie Montgomery, Katherine’s grandmother, stated in her
affidavit Katherine had complained to her numerous times
about abdominal pain. According to the affidavit,
Montgomery heard Katherine relate she had complained about
her abdominal pain to a nurse while visiting her newborn at
SRMC the previous day and the nurse said “it was just
normal after birth symptoms.” Although Montgomery told
Katherine to insist on seeing a doctor, Katherine said she
would “try to make it until the appointment [on November
19].”
Joel S. Engel, M.D., Jones’s expert witness, gave his
opinion in an affidavit that “had [Katherine] had
post-operative medical attention when complaining of her
[severe] abdominal pain . . . identification of the
incisional disruption and the finding of the
hematoperitoneum would have prevented the untimely death of
this woman.” He further stated that “[d]ehiscence of a
uterine and/or surgical incision is a known and acceptable
risk assuming the operative procedure is performed in an
accepted manner”[fn2]; however, in his deposition, he agreed
it was a rare occurrence and acknowledged he had never been
personally involved in a similar case.
Furthermore, when asked during his deposition to summarize
his opinions in this case, Engel replied SRMC’s only
deviation from the standard of care was its failure to
respond in an appropriate manner to Katherine’s alleged
complaints of severe abdominal pain that were “outside the
normal postoperative complaints.”[fn3] Engel further stated
he received no records from SRMC suggesting a physician at
SRMC had been made aware of any complaints from Katherine
regarding abnormal abdominal pain. He further agreed it was
appropriate follow-up care to schedule an appointment for a
patient who had just had a cesarean section seven days
after her discharge.
After Engel’s deposition on February 14, 2005, Defendants
moved for summary judgment. The Spartanburg County Court of
Common Pleas scheduled the motion for a hearing on June 6,
2005, at 3:15 p.m.
According to the record on appeal, on June 6, 2005, at
11:14 a.m., the Spartanburg County Clerk of Court filed a
motion by Jones’s attorney to continue the hearing based on
an allegation that Defendants untimely served their
memorandum in support of summary judgment and Jones’s
attorney still had not received a transcript of a
deposition. Around 12:42 p.m. that same day, Judge John C.
Hayes, a visiting judge presiding at the summary judgment
hearing, received a faxed letter from Jones’s attorney
advising counsel would not be available that afternoon
because he had a divorce hearing in McCormick County that
morning. When the case was called, it appears no one on
Jones’s behalf was present. Judge Hayes stated on the
record that he called the McCormick County Courthouse and
had been informed by the clerk the hearing had concluded
“before lunch,” and counsel “had left there saying he was
heading to Spartanburg.” Reasoning counsel had ample time
to arrive at the summary judgment hearing, Judge Hayes then
allowed Defendants’ attorney to present arguments
concerning both the requests for a continuance and the
summary judgment motion.
On June 9, 2005, Judge Hayes issued an order granting
summary judgment to Defendants, finding Jones “has not
presented any admissible evidence that Defendants were ever
contacted by [Katherine] following her discharge on
November 12, 2001 with any complaints of post-operative
complications” and concluding that “[a]s Dr. Engel’s
opinions against Defendants are premised on the contention
that the Defendants were negligent in failing to provide
prompt and timely follow-up care, [Jones’s] claims fail as
a matter of law.”
Jones moved for reconsideration pursuant to Rules 59 and
60, SCRCP. By order dated June 22, 2005, Judge Hayes denied
the motion. Jones then filed this appeal.
LAW/ANALYSIS
1. We disagree with Jones that Judge Hayes erroneously
“assumed the authority” of the chief administrative judge
in denying her motion for a continuance of the summary
judgment hearing. The only legal authority Jones has cited
to this court in support of this argument is Rule 40(i)(1),
SCRCP. Although that rule concerns requests for
continuances, it authorizes “the court” to grant such
requests “for good and sufficient cause.”[fn4] Furthermore,
the letter counsel faxed requesting postponement of the
hearing was addressed to Judge Hayes, notwithstanding he
was a visiting judge in the circuit.
2. We further find Judge Hayes committed no abuse of
discretion in refusing to continue the summary judgment
hearing either for the reasons advanced in Jones’s formal
motion or because of potential scheduling conflicts that
were referenced in the subsequent letter that her attorney
faxed to the court.[fn5]
By letter dated May 16, 2005, counsel for Defendants
notified Jones’s attorney the summary judgment motion would
be heard on June 6, 2005, at 3:15 p.m. It was not until the
day of the scheduled hearing that Jones filed a formal
motion for a continuance, which was followed by the faxed
letter from her attorney advising that he had a hearing in
another county that morning.
Regarding the scheduling conflict, Judge Hayes issued an
order on June 21, 2005, in which he acknowledged he may
have been under the misapprehension that Jones’s attorney
had left the McCormick County Courthouse at noon rather
than at 1:00 p.m. Nevertheless, Judge Hayes determined
there was still ample time for counsel to drive to
Spartanburg for the summary judgment hearing even if he had
departed one hour later than originally assumed and a
telephone call could have addressed the situation if he had
been running late. Judge Hayes noted he based his finding
about the driving time on www.mapquest.com. Jones has not
offered anything in her brief on appeal to suggest this
source was unreliable.
As to the grounds advanced in Jones’s formal motion, we
hold neither is of sufficient merit to warrant a
determination that Judge Hayes’s refusal to continue the
hearing amounted to an abuse of discretion. The South
Carolina Rules of Civil Procedure do not set a deadline for
submitting memoranda of law prepared in conjunction with
summary judgment motions. In fact, such memoranda are not
required at all. Moreover, the deposition that Jones
claimed she needed a transcript for had been taken
twenty-four days before the scheduled hearing, giving her
ample time to move for a continuance. Accordingly, Judge
Hayes did not err in refusing to grant the requested
continuance.[fn6]
3. Turning to the merits of the case, we disagree with
Jones’s contention that summary judgment was improper.
“Summary judgment is appropriate when it is clear that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of
law.”[fn7] “In reviewing an order of summary judgment, an
appellate court applies the same standard as that which the
circuit court applied in determining whether to enter the
order.”[fn8] “On appeal from an order granting summary
judgment, the appellate court will review all ambiguities,
conclusions, and inferences arising in and from the
evidence in a light most favorable to the non-moving party
below.”[fn9]
A plaintiff alleging medical malpractice must provide
evidence of (1) “the generally recognized practices and
procedures which would be exercised by competent
practitioners in a defendant doctor’s field of medicine
under the same or similar circumstances,”[fn10] and (2) a
departure by the defendant “from the recognized and
generally accepted standards, practices and procedures in
the manner alleged by the plaintiff.”[fn11] In addition,
there must be evidence that the defendant’s failure to meet
the recognized standard of care was the proximate cause of
the plaintiff’s alleged injuries and damages.[fn12]
In the present case, Engel opined Defendants departed from
the standard of medical care in failing to provide
post-operative medical attention to Katherine after she
complained of severe abdominal pain. Absent, however, is
any admissible evidence suggesting that anyone responsible
for Katherine’s care and treatment, physician or otherwise,
was made aware of her abdominal pain.
Here, Priscilla Jones’s affidavit and deposition were the
only evidence that a witness actually heard Katherine voice
any complaints to hospital personnel. As we have recounted
earlier in this opinion, Priscilla stated in her affidavit
that she heard Katherine tell a nurse that her feet were
swollen and she had been feeling cold. Likewise, in her
deposition, Priscilla testified she heard Katherine
telephone her doctor for an appointment; however, she only
recalled Katherine complaining about her swollen feet. In
neither instance did Priscilla attest to hearing Katherine
tell anyone at SRMC that she was experiencing abdominal
pain.
Although Jones testified she heard about Katherine’s
abdominal pain from Katherine herself, Jones never stated
she was present during any conversations that Katherine may
have had with staff members at SRMC. Montgomery’s affidavit
indicates Montgomery had, at best, hearsay knowledge about
Katherine’s complaints to medical personnel about her
abdominal pain. Finally, as noted in footnote 6 of this
opinion, Jones does not specifically take issue with Judge
Hayes’s finding that any claim by Montgomery in her
deposition that she knew Katherine sought medical care for
her abdominal pain was actually hearsay testimony.[fn13]
4. Finally, Jones appears to argue Judge Hayes failed to
give due consideration to an undated, unsigned document
entitled “Statement of Annie Jones,” in which Jones
purportedly averred Katherine “said for four days that she
had been repeatedly calling the doctor, complaining of
constant severe abdominal pain, but the doctor neglected to
schedule an appointment to see her until finally an
appointment was given for November 19, 2001 “” however, she
died on November 17, 2001.” In support of this argument,
Jones notes in her brief that Engel acknowledged he
reviewed this document, which was provided to him by Jones’s
attorney. The implication appears to be that,
notwithstanding the hearsay characteristics of the
statement at issue and the fact that the document itself
lacked authentication, the statement and document were
admissible as factual evidence because they formed the
basis of Engel’s opinion. We disagree.
Although Jones does not cite any particular rule of
evidence in her brief, she apparently relies on Rule 703,
SCRE. This rule permits an expert giving an opinion to rely
on facts or data “that are not admitted in evidence or even
admissible into evidence.”[fn14] The rule, however, does
not allow for the unqualified admission of hearsay evidence
merely because an expert has used it in forming an opinion.
Rather, as aptly set forth in one treatise:
[T]he expert may testify to evidence even though it is
inadmissible under the hearsay rule, but allowing the
evidence to be received for this purpose does not mean it
is admitted for its truth. It is received only for the
limited purpose of informing the jury of the basis of the
expert’s opinion and therefore does not constitute a true
hearsay exception.[fn15]
Applying this interpretation of Rule 703 to the present
case, we hold that, even if Jones is correct that Engel
“had information about complaints by [Katherine] to the
Hospital or any physician in the unsigned, undated,
typewritten “”Statement of Annie Jones,’ ” the document and
the assertion that Katherine “said for four days that she
had been repeatedly calling the doctor, complaining of
constant abdominal pain” were, at best, admissible only to
explain how Engel reached his determination regarding
whether there was a breach of a duty in this case. Neither
the document nor the statement within it could have been
admitted as evidence that someone responsible for
Katherine’s care and treatment at SRMC was alerted to her
complaints of abdominal pain. Absent such evidence, Jones
has failed to present a genuine issue of material fact as
to whether Defendants deviated from the applicable standard
of care.
AFFIRMED.
STILWELL and SHORT, JJ., concur.
[fn1] The term “dehiscence” has been defined as “[a]
bursting open, as of a graafian follical or a wound, esp. a
surgical abdominal wound.” Taber’s Cyclopedic Medical
Dictionary 507 (17th ed. 1993).
[fn2] Priscilla stated in her affidavit she was present
during the surgery and heard one of the doctors performing
the cesarean section say “Oh-oh” “in an alarming manner, as
though a mistake had been made” and, when she asked if
anything was wrong, a physician said, “We’ll take care of
it.” Despite this allegation, there was no attempt to
develop the theory that Katherine’s death resulted from the
surgery itself.
[fn3] Although Engel testified no dictated operative report
was present in Katherine’s file and stated this omission
was “one glaring deficiency in the records,” there was no
showing that Jones made any attempt to obtain such a report
or that the absence of the report was proximately linked to
the damages claimed in this lawsuit.
[fn4] Rule 40(i)(1), SCRCP. Although paragraph (h) of Rule
40 requires “[t]he Chief Judge for Administrative Purposes,
in cooperation with the clerk” to be “responsible for
setting all matters on the Nonjury Docket for disposition,”
the rule does not specify that scheduling changes need
approval from the chief administrative judge.
[fn5] See Jackson v. Speed, 326 S.C. 289, 309, 486 S.E.2d
750, 760 (1997) (stating a ruling on a motion for a
continuance is within the trial court’s sound discretion).
[fn6] In her formal motion for a continuance, Jones alleged
as good cause for a continuance that SRMC “challenges the
affidavit of Plaintiff’s witness Minnie Montgomery, who was
deposed Friday, May 13, 2005, and whose requested
deposition transcript has not been received by Plaintiff,
and to provide said transcript to Plaintiff’s medical
expert as an additional basis for his opinion. . . .”
Pursuant to Jones’s motion for reconsideration, Judge Hayes
issued an order in which he noted he read the deposition at
issue “out of interest” and found the “firsthand knowledge”
Montgomery claimed to have regarding Katherine’s attempt to
obtain medical care was actually inadmissible hearsay
testimony. Jones does not specifically challenge this
finding in her brief. Assuming, then, without deciding that
Jones did not receive timely notice that Montgomery’s
affidavit would be challenged, she failed to make a showing
on appeal that Montgomery’s deposition would have cured the
defects in the earlier statement.
[fn7] Gadson v. Hembree, 364 S.C. 316, 320, 613 S.E.2d 533,
535 (2005).
[fn8] Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334,
340, 611 S.E.2d 485, 488 (2005).
[fn9] Willis v. Wu, 362 S.C. 146, 150-51, 607 S.E.2d 63, 65
(2004).
[fn10] Cox v. Lund, 286 S.C. 410, 414, 334 S.E.2d 116, 118
(1985).
[fn11] Id.
[fn12] David v. McLeod Regional Med. Ctr., 367 S.C. 242,
248, 626 S.E.2d 1, 4 (2006).
[fn13] See Rule 208(b)(1)(B), SCACR (“Ordinarily, no point
will be considered which is not set forth in the statement
of the issues on appeal.” ). In any event, we found nothing
in Montgomery’s deposition indicating she heard Katherine
report complaints of abdominal pain to appropriate hospital
personnel.
[fn14] Rule 703, SCRE notes.
[fn15] 2 Kenneth S. Broun, et al., McCormick on Evidence
§ 324, at 418 (2006) (emphasis added); see also Kim
v. Nazarian, 576 N.E.2d 427, 433 (Ill.App.Ct. 1991) (“Rule
703 does not create an exception to the rule against
hearsay because the underlying facts or data are admitted
not for their truth, but for the limited purpose of
explaining the basis of the expert’s opinion.”).