Knowing that you may have a claim for medical malpractice is one thing. But what is next? Can you just retain an attorney and file a lawsuit right away? According to South Carolina law, the answer to that question is “Not so fast.”
Before you can file a lawsuit for medical malpractice, South Carolina law requires you to participate in a form of mandatory alternative dispute resolution. So before you can file a lawsuit, you will need to file a notice of intent to file one. At that point you will have a limited period, generally 90 days, but it can be extended for a limited time, to participate in a mandatory mediation conference.
The object of mediation is to determine if it is possible to resolve the underlying claim without the need for a trial, which can be lengthy and expensive. In fact, the mediation itself may be thought of as a form of mini-trial, complete with its own forms of discovery between the two sides such as depositions, interrogatories and expert witnesses.
The governing law makes it clear that aside from the mandatory mediation conference, the malpractice claimant and the defendants are free to choose a non-judicial setting to adjudicate the dispute, including binding or non-binding arbitration.
Nonetheless mediation, may not always lead to a settlement of the medical malpractice claim. If this is the outcome of the mandatory mediation conference, then within 60 days after the date on which the mediator concludes that mediation has failed, or before the expiration of the statute of limitations, whichever occurs later, the claimant can initiate a regular lawsuit in the ordinary fashion, by filing a summons and complaint against the defendants.
As this overview should make clear, resolving a medical malpractice claim can be more complicated than filing a regular lawsuit. This post only addresses some of the complexities of the law. If you have a potential claim against a doctor or a hospital, you would be well served to consult with an attorney.