The following is a summary of a recent South Carolina Court of Appeals decision:
Jennifer Tatum v. Medical University of South Carolina, ____ S.C. _____, ____S.E.2d____, Shearhouse Advance Sheet No. 16, Op. No. 2986 (Ct. App. 5/3/99)
The claimant injured her back while in the course of her employment with the Medical University of South Carolina (MUSC). MUSC diagnosed the claimant with a "midline broadly based disc herniation," gave her epidural injections, and referred her to Dr. Patel, a neurological surgeon and employee of MUSC.
Subsequently, the claimant underwent two surgical fusions that were performed by Dr. Patel. Prior to the second surgery, Dr. Patel failed to inform the claimant of the potential risks and that he planned to insert a plate and screws into her vertebrae. The procedure inserting the plate into the claimant's vertebrae damaged her spinal cord as well as the nerves affecting her arms. The claimant maintained that a reasonable patient would not have consented to the drilling if the risks had been fairly and adequately explained.
The claimant was ultimately found to have permanent damage to her spinal cord and was awarded permanent disability benefits under the South Carolina Workers' Compensation Act. She then sought to pursue additional benefits through a medical malpractice action against MUSC and its employee, Dr. Patel. MUSC argued that it was not liable for a physician's malpractice and that any malpractice injury was merged into the workers' compensation award. The Circuit Court granted MUSC's motion to dismiss holding that workers' compensation was the claimant's exclusive remedy. The claimant appealed.
The South Carolina Workers' Compensation Act provides that the rights and remedies granted by the Act to pay and accept compensation on account of personal injury or death by accident, "shall exclude all other rights and remedies of such employee,...against his employer...." However, the South Carolina Court of Appeals held that the Act does not bar a medical malpractice action against a negligent treating physician.
Although Section 42-15-70 states that an employer shall not be liable in damages for malpractice by a physician or surgeon furnished by him, the Court of Appeals interpreted the statute only to exculpate an employer from malpractice because the employer chose the claimant's treating physician. The Court of Appeals decided that, in the instant case, MUSC - the employer, took on a legally distinct persona from MUSC - the treating hospital. This "secondary relationship" created obligations to the claimant independent of its obligations as employer. Because MUSC was acting in a totally separate capacity (i.e., not as her employer) at the time of the malpractice, the Act's exclusivity provisions did not bar a malpractice suit against MUSC.
Employers such as hospitals, medical practice groups, nursing homes, and other medical providers must be aware that if they send their employees who are injured on the job to their own medical facility for treatment, they could ultimately be responsible for a malpractice action in the event the claimant is injured during the treatment. This potential malpractice liability would be independent of, and in addition to, any liability under the South Carolina Workers' Compensation Act.
Although South Carolina allows employers to choose the medical providers to whom their injured employees are sent for treatment, under Tatum employers that are also health care providers assume a "dual role" if they choose to treat their own employees in the context of workers' compensation injuries. This "dual role" may subject the employer to liability beyond the statutory limits and protections normally found under the Workers' Compensation Act. In light of this decision, this particular class of employers should give extra consideration in making decisions regarding the location, manner, and methods of treatment provided to injured employees.
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