Recently we wrote about the mandatory mediation requirement that South Carolina law places on a person who seeks redress for a claimed act of medical malpractice. The interest of the state in requiring mediation before a lawsuit may be filed is an expression of the concept of judicial economy, which seeks to minimize litigation in the courts when an alternative way to resolve the dispute may work.
But mediation does not always work. Sometimes, the positions of the two sides in a medical malpractice or hospital negligence claim are too far apart for a mediator to reach a middle ground for settlement. If mediation fails, the question becomes what to do after that?
The same South Carolina statutes that require medical malpractice mediation provide the guidance on how to proceed if mediation does not work. Section 15-79-125 of the South Carolina Code of Laws directs that if the parties cannot come to a mediated settlement, then the claimant needs to initiate a lawsuit by the standard procedure of filing a legal summons and complaint against the defending individual, or health care facility, or both as applicable.
The time limit to file the lawsuit is the later of either:
- not more than 60 days after the mediator determines that mediation will not bring about a resolution of the dispute; or
- the expiration of the statute of limitations to file a lawsuit.
There may still be one hurdle left however, before going to court. If the person claiming medical malpractice has agreed beforehand to participate in another form of alternative dispute resolution, like arbitration, then the filing of the summons and complaint does not eliminate the requirement to participate in that forum. If that other form of dispute resolution also fails to lead to a settlement or binding decision, though, then the law allows the plaintiff to proceed to litigation.
The interpretation and application of the statutes governing how and when to file a medical malpractice lawsuit can be complex matters. While nothing prevents an individual from representing himself or herself in litigation, it may be advisable to at least consult with a legal professional before doing so in order to potentially avoid some costly errors.