Medical malpractice claims are based in the concept of negligence, and under many circumstances lawsuits that allege negligence are not based on statutory law passed by the legislature.
In South Carolina, however, before one may file a claim for hospital negligence, surgical error, misdiagnosis or delayed treatment to court, state law requires that another step first be taken: mediation.
The statute that establishes the mediation requirement for medical malpractice claims is Section 15-79-110. Some of the particulars of this requirement include:
Mediation is mandatory. The plaintiff and the named defendants in the plaintiff’s medical malpractice claim shall participate in it under the language of the law.
- An expert witness is required to support a lawsuit claim going into mediation. The law requires that the plaintiff accompany the notice of intent to file a lawsuit with an affidavit from an expert.
- The mediation can include elements that are also found in court trials. One such element is referred to as "discovery," and allows the parties to legally obtain medical records and other documents from one another and to take depositions.
- The results of mediation are non-binding. Mediation is one form of what is referred to as alternative dispute resolution, but if the parties to mediation cannot reach an agreed-upon resolution to the plaintiff’s claim, then the matter may proceed to a next step including trial.
It is possible that through mediation, a lengthy and expensive trial may be avoided if the plaintiff and the defendants can resolve the dispute informally. But even if mediation does not successfully resolve the claim, it does not preclude the plaintiff from turning next to more formal and binding ways to bring his or her claim forward.
In this way, the state law appears to seek the most expeditious and least expensive way to resolve medical malpractice claims without necessarily prejudicing a plaintiff’s ability to seek full redress for damages allegedly suffered.