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Attorney's Guide to Medical Malpractice For South Carolina (SC) Lawyers and Plaintiffs
By Joseph Griffith

Medical and health care providers - primarily hospitals, surgeons, doctors, pharmacists, physicians, nurses and emergency medical technicians ("EMTs") -- are expected to offer us care and support during our most critical moments. The vast majority of medical and health care providers do offer excellent care that will help us to recover from a personal injury or medical condition. However, some providers fail to meet the requisite standard of care, and, under such circumstances, may be guilty of medical malpractice.

COMMON TYPES OF MEDICAL MALPRACTICE

Medical malpractice, commonly called "medmal" for short, generally occurs when a negligent, careless or reckless act, mistake, error, or omission by a doctor or other medical professional causes damage or harm to a patient. It has been estimated that almost 98,000 people die in hospitals in the United States each year, and that medication errors injure approximately 1.3 million people per year. Medical malpractice errors or negligence typically occur in the diagnosis or treatment of a patient, and may include, but are not limited to:

>Failure to treat >Wrong treatment >Delay in diagnosis >Failure to diagnose >Failure to rule out causes or conditions >Misdiagnosis >Failure to test >Failure to obtain informed consent >Surgical injury >Wrong prescription of drugs >Patient abandonment >Use of defective medical products

A patient's right to recover compensation for medical malpractice is generally governed by common law as well as statutes and regulations which have been promulgated to protect patients who have been subjected to medical malpractice or medical negligence. Medical malpractice suits are usually complex, time-consuming, expensive to litigate, dependent upon expert testimony, and vigorously defended by health care providers and their insurers.

ELEMENTS OF A MEDICAL MALPRACTICE OR MEDICAL NEGLIGENCE CLAIM

The medical malpractice personal injury victim is commonly referenced as a "plaintiff" and the person or entity that caused the harm is commonly referenced as a "defendant." The South Carolina Supreme Court has set forth the elements of negligence with regard to a medical malpractice personal injury claim that a plaintiff has to prove as follows:

>A physician-patient relationship exists >The generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants' field of medicine under the same or similar circumstances >That the defendant departed from the recognized and generally accepted standards>The defendant's departure from such generally recognized practices and procedures was the proximate cause of the plaintiff's alleged injuries and damages

Thus, the medical malpractice lawyer and his client must present evidence to meet each of the foregoing elements at trial.

A physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances. Durham v. Vinson, 360 S.C. 639 (2004). A plaintiff and his attorney must proffer expert testimony to prove both the required standard of care and the defendant's failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct of the defendants.

INFORMED CONSENT CLAIM

A physician's failure to obtain a patient's "informed consent" with regard to a procedure or treatment is a form of medical malpractice. The term "informed consent" means that a physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, diagnostic procedure, medical procedure, therapeutic procedure, or other course of treatment, and must obtain the patient's written consent to proceed. Under Informed consent law, a physician who performs a diagnostic, therapeutic, or surgical procedure has a duty to disclose to a patient of sound mind, in the absence of an emergency that warrants immediate medical treatment, (1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not out, and (6) the existence of any alternatives to the procedure. Thus, the plaintiff and his lawyer must present evidence of the physician's breach of the foregoing elements of an informed consent claim in order to prevail at trial.

BREACH OF CONTRACT OR WARRANTY CLAIM

While most health care providers will not guarantee or warrant a particular outcome, there are times when they do, and a failure to successfully provide the outcome may give rise to a breach of contract or breach of warranty claim. These type cases usually involve plastic surgery wherein the patient is told that his or her post-surgery physical appearance will be the same as demonstrated on a computerized enhancement of the patient's photograph. Thus, much like a business breach of contract claim, the plaintiff and his lawyer must present evidence of the physician's breach of the stated warranty or guarantee by the preponderance of evidence in order to prevail at trial.

COMPENSATION IN MEDICAL MALPRACTICE CASES

In a medical malpractice personal injury lawsuit, a victim seeks compensation for the injury or injuries he or she has suffered. Compensation can include past and future medical expenses, disability or deformity, loss of income, emotional and mental anguish, loss of a spouse's comfort and society, past and future pain and suffering, and an amount which would be necessary to make the person whole as respects a permanent personal injury. McNeil v. United States, 519 F.Supp. 283 (D.S.C. 1981). In cases where the defendant acted recklessly, maliciously or willfully, punitive damages may also be awarded. Punitive damages in medical malpractice lawsuits are intended to punish the responsible party and deter others from committing the same acts. Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991). If a wrongful death results from the medical malpractice, the decedent's beneficiaries are entitled to compensation.

CAPS ON MEDICAL MALPRACTICE DAMAGES

For medical malpractice cases arising on or after July 1, 2005, which placed caps on non-economic damages a patient could recover from a liable defendant health care provider. S.C. Code § 15-32-220(a) limits the civil liability for non-economic damages of the health care provider to an amount not to exceed $350,000 for each claimant regardless of the number of separate causes of action on which the claim is based. S.C. Code § 15-32-220(a) provides an exception to the foregoing cap where the health care provider is proven to be grossly negligent, willful, wanton or reckless and that conduct was the proximate cause of the claimant's non-economic damages. S.C. Code 15-32-220(b) provides that the $350,000 cap is limited to each claimant. S.C. Code 15-32-220(c) allows a claimant to stack his claim, and provides that up to three health care providers may be subject to the $350,000 cap per claimant, for a total of $1,050,000 per claimant.

The non-economic damage cap of $350,000 per medical entity or practice or person does not apply to economic damages and does not apply to punitive damages. Effective for medical malpractice cases arising on or after July 1, 2005, S.C. Code 15-32-230 further limits liability with regard to emergency obstetrical or emergency department situations. This section eliminates liability on behalf of any person providing emergency care or emergency obstetrical care to a person in immediate threat of death or an immediate threat of serious bodily injury while in an emergency room, obstetrical or surgical suite, unless the health care provider is proven to be grossly negligent. Other caps or limitations may be applicable to a medical malpractice case as well.

STATUTE OF LIMITATIONS

The plaintiff's attorney must timely bring a medical malpractice suit within the required timeframes. There are time limits on bringing a personal injury lawsuit in the state of South Carolina known as statutes of limitations. See S.C. Code 15-3-530(5); 15-3-535. While a medical malpractice personal injury suit is generally subject to a three year statute of limitations, there may be exceptions depending on the circumstances, such as a medical malpractice case where the negligent conduct may be covered by a concept known as the "discovery rule." See S.C. Code 15-3-545; Wilson v. Shannon, 299 S.C. 512, 386 S.E.2d 257 (Ct. App. 1989).

The statutes of limitations are different for negligence suits against a South Carolina state government agency pursuant to the South Carolina Tort Claims Act ("TCA") and the federal government pursuant to the Federal Tort Claims Act ("FTCA"). Under the TCA, a suit must generally be filed within two years, unless a verified claim is filed within a year of the injury, then the statute of limitations is three years. S.C. Code § 15-78-110. Under the FTCA, an administrative tort claim must generally be presented to the subject federal agency within two years. Once a timely administrative tort claim has been filed, there is no statute of limitations on bringing a suit unless the federal agency denies the claim, in which case a suit must be brought in federal court within six months after the denial. 28 U.S.C. 1346(b), 1402, 2401, 2675.

NECESSITY OF AN EXPERT

South Carolina Code 15-79-125 requires, on medical malpractice cases arising on or after July 1, 2005, that before a medical malpractice suit can be filed, a plaintiff has to simultaneously file both a notice of intent to file suit and an affidavit of an expert witness subject to the affidavit requirements established in 15-36-100 in a county in which venue would be proper for filing or initiating the action. Statutory mediation of any such medical malpractice case is required as well, and, there are time limits for filing suit should the attempted mediation fail. As noted above, an expert's testimony is necessary at trial to prove a breach of the standard of care and proximate cause of the injury, and the medical malpractice lawyer should retain a medical expert early on to assess the case and to be prepared to testify at trial.

Medical malpractice suits in South Carolina are difficult to pursue. Before undertaking a med-mal suit, the injured client would be well advised to consult with a lawyer with medical malpractice experience.

Joseph P. Griffith, Jr.
SC Medical Malpractice Lawyer
SC Medical Negligence Attorney
Joe Griffith Law Firm, LLC
7 State Street
Charleston, South Carolina 29401
(843) 225-5563 (tel)
(843) 722-6254 (fax)
http://www.joegriffith.com

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Confidentiality and Your Criminal Defense Attorney - An Overview
By Christopher Small

Whether a criminal defense attorney, a civil attorney, or just a normal person on the street, almost everyone has heard of and has a vague idea regarding what the attorney-client privilege is. If we haven't dealt with it directly in our own lives then we've almost certainly had the opportunity to see it in action on television or in the movies.

But what is the attorney-client privilege really? Does it mean that when you tell a lawyer something that they can't tell anyone no matter what? And when does it begin? Do you have to hire the attorney? And when does it end? Will a lawyer really take your secrets to their grave? Read on to have these questions answered.

Let's start with what the privilege means. And, since I am a Seattle criminal defense attorney, we'll use it in the context of criminal law, even though it applies to other areas of the law equally. The attorney-client privilege is the idea that everything you tell your lawyer, in private (when just the two of you are present) is confidential. This means the attorney cannot tell anyone what you have talked about. They can't tell their wife, they can't tell their buddies, they can't tell the judge, even if ordered to do so. The only time they can divulge the information you've told them is to commit the commission of a crime or the loss of life or property of someone. It is a very powerful privilege.

And the best thing is, the privilege starts right when you walk in the door. You don't even have to have retained the attorney for the privilege to attach. It happens automatically, and even if you don't hire that attorney, they still have to keep your secrets safe. Let me give you an example to show you how powerful it can be. Let's say you are looking for a divorce and you go talk to a lawyer about it.

You tell him all about your situation and what has been going on, he quotes you a fee, and you tell him it's too expensive and go find someone else. A week later your wife comes in and wants to talk to a lawyer about a divorce. The attorney not only can't take the case because he's already talked to you and representing the wife would create a conflict, but he can't tell the wife why he can't represent her! The wife would simply be sent away. That's how powerful the privilege is.

And the privilege outlasts even your life. Your secrets die with the attorney. In the criminal law context there are examples of people who have confessed to murdering people (it isn't the commission of a future crime so it is confidential) to their attorney, another person is tried and convicted of the murder, and the attorney never told anyone about the confession (it obviously later came out, but not in any way that affected the client). So, essentially, your secrets are safe.

There is good reason behind this privilege - your criminal defense lawyer must know as much about your case as possible to give you the best defense possible. Without your information and candid conversation, that is nearly impossible. So, the next time you are with your lawyer, don't be afraid to speak up. Your secrets are safe.

I am a Seattle criminal defense attorney who cares about his clients, wants the best for them, and looks forward to helping them move from one bad decision without a lifetime of worry. If you have been charged with a crime or are being investigated for a crime don't wait, talk to a criminal lawyer today. It can dramatically affect the outcome of your case.

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Employment Law - Basic Mistakes to Avoid

Employment law is a complicated area for employers, and failing to be aware of the correct procedures could end in a costly employment tribunal claim. This could be expensive both financially as regards legal costs and any award made, and in terms of working time lost and morale levels. Here are four key employment law areas that all employers should be aware of.

1. Collective Redundancies.

If a minimum of 20 employees are going to be made redundant at a single establishment within 90 days, according to the Trade Union and Labour Relations (Consolidation) Act 1992, employers must consult with any representatives of the employees. If the employer fails to do so, they could be liable for a protective award that requires them to pay every affected employee a maximum of 90 days' pay. Employers that are thinking making redundancies of between 20-99 employees must start the consultation process a minimum of 30 days prior to making any decision to terminate employees' contracts. If more than 100 redundancies are proposed, this period increases to 90 days. Genuine efforts to consult must be made - merely keeping employees informed does not fulfil this duty.

In addition, in these circumstances notification must be made to the Secretary of State of the proposed redundancies at least 30 days or 90 days before giving notice to terminate an employee's contract.

Restructuring a business, even where staff may not actually leave your employment, carries with it potential risks. If fundamental changes are made to employees' jobs, care must always be taken. If you propose to retain an employee on what is in reality a different contract of employment, this is a proposal to terminate the existing one.

2. Employees on Fixed-term Contracts.

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 give those employees who have fixed-term contracts the right to equally favourable treatment as comparable permanent employees, especially regarding terms of their contracts, unless there is a good reason for them to be treated differently. Furthermore, the Regulations aim to prevent successive fixed-term contracts when a worker is actually a permanent member of the workforce. To discourage this practice, a fixed-term contract is normally automatically converted into a contract of indefinite duration once an employee has completed four years' continuous employment under two or more fixed-term contracts. Service before 10 July 2002 does not count towards the period of four years' continuous employment so the first date on which fixed-term contracts could be converted to indefinite contracts was 10 July 2006. If an employee is dismissed because they have tried to enforce their rights under the legislation, it is automatically classed as unfair dismissal.?

3. TUPE.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) apply to any size of business and protect the employment rights of employees when their employer changes as a result of the 'relevant transfer' of a business or a part of one. If a business is sold and the TUPE Regulations apply, both parties have a duty to inform and consult with the appropriate representatives of any employees that have been affected to gain their agreement to the proposal.

When a business or business unit is being transferred, with its employees, it is essential to take advice at the planning stage.?

4. Whistleblowing.

The Public Interest Disclosure Act 1998 (PIDA) - often referred to as the 'Whistleblowing' Act - gives workers legal protection when disclosing information relating to crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these. It is automatically unfair dismissal to dismiss an employee for making a 'protected disclosure', in good faith, to someone to whom they are entitled to make it, or to penalise them for doing so. The protection afforded continues to apply after the termination of the whistleblower's employment.

Any employer faced with any of these issues should, unless they are absolutely sure of their legal position, seek expert advice from a specialist employment law solicitor. ?

---

Bonallack & Bishop (http://www.bishopslaw.co.uk ) are a firm of Employment Law solicitors with a team specialised in compromise agreements. Tim Bishop is senior partner at the firm, which he has grown by 1000% in the last 12 years. He is responsible for all major strategic decisions and sees himself as a businessman who owns a law firm.

Source: http://www.submityourarticle.com

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Expungement - How Long Does it Take to Expunge a Criminal Record?
By Chris S Work

In legal terms, an expungement is a legal procedure where someone who is a first time offender tries to have the records of their offense sealed by the courts, thus making them unable to be seen in police and federal criminal databases. When the record is sealed, the legal term commonly used is that it has been "expunged", essentially making it as if it never even happened. You should not get the terms "expunge" and "pardon" confused however, as they both mean very different things in the legal system. When a criminal record is expunged, as far as everyone is concerned, the record never existed in the first place. If someone is granted a pardon, they essentially given forgiveness, but the record still remains on their profile and is never erased.

There are a number of reasons why someone would seek expungement and every legal jurisdiction is free to set their own rules regarding how the procedure is carried out. It is widely accepted that the word expunge means to take a record away from where it can be seen for general review. However, a large number of states have provisions set up so that the expunged records are not gone completely from databases that are accessible by police officers, judges, who made need the information to determine future sentencing and lock up facilities, which may house an inmate for a future conviction.

Keep in mind, though, that not just any crime can be expunged. There are certain crimes that are eligible and others that are ineligible for expungement. Most crimes are able to be expunged as long as a certain number of requirements are met beforehand. Some of these include things like waiting a certain amount of time between the crime and requesting expungement, not having anymore related crimes, having less than a certain number of crimes, the cannot be too serious of an offense, and a probation period completed. Some of the crimes that are ineligible to be expunged include felonies where the victim was younger than 18, rape, sexual assault, corrupting someone who is underage, sexual annoyance and obscene gestures aimed at or pornography involving an underage individual.

As mentioned earlier, each jurisdiction can set its own expungement rules. And each state can determine what can qualify to be expunged, as well as decide to not allow any records to be expunged whatsoever. If a record is eligible to be expunged, it can take anywhere 3 months and sometimes as long as year for more complex crimes. The average should be around 6 months however.

If you would like to have your criminal record cleared and you live in the state of New Jersey, contact a NJ expungement lawyer at Clark & Clark. They will provide you a free consultation and explain NJ expungement laws to see if you qualify. Call now - 877-290-3867

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Eye for an Eye is a television program that has run in syndication since 2004.

The program is a variation on popular thirty minute Reality shows. Eye For an Eye is presided over by Judge "Extreme Akim" Anastopoulo, with bailiff and former boxer Big Sugar Ray Phillips. The series was formerly hosted by Cheaters host Tommy Habeeb and Kato Kaelin. The show is unusual among courtroom reality shows for its lack of courtroom decorum; One example is the courtroom is very brightly lit. Another example, when Big Sugar Ray Phillips instructs the audience to rise as Judge Akim enters the room carrying his bat of justice, (also unusual to have a bat for a gavel), the audience rises while cheering and chanting "Extreme Akim" repeatedly. They frequently shout remarks throughout the entire hearings. The plaintiffs and defendants have to enter ring shaped cages that have a microphone attached to them.

More unusual things are some of the rulings issued by Judge Akim. In addition to ordering how much the defendant has to pay, he also sometimes orders them to do ridiculous tasks. In one case, he ordered a man who impregnanted a girl to wear a fat suit for a month; in another, he ordered a landlord whose apartments were not suitable for living to write a new policy while sitting in a truck full of garbage. Such rulings depend upon the fact that the show is a form of binding arbitration rather than an actual court; in normal small claims court, the remedies available at law are generally constrained to monetary compensation for damages caused. In a more famous episode "The Bar Poured a Stiff One", where Dallas based band STRANGLEWEED was sued for an unpaid bar tab. The counter claim was that the bar owner of "Jay's Lounge" stiffed the band on a "Free Bar Tab" and allegedly stole the bands mixing board as compensation. Judge "Extreme Akim" gave the "bat of justice" to Strangleweed and allowed the band to destroy the same amount that the bar owed them. They used golf clubs, chainsaws and bats until the bar and all of its liquor was demolished. Often in such cases, an appraiser will determine the value of property. One time enough property was taken, and a table in new condition was selected as the last item, but the table's value exceeded the maximum amount in value. As a result, the table was sawed in half and only half of the table was taken.

The reason for the extreme sentencing is because the show believes that the justice system is not always fair. The series follows the Eye for an eye system. At the end of each hearing, Extreme Akim will say "Now THAT's justice."

Eye for an Eye is shown in syndication in 69 countries.

Financial Checklist For People Contemplating Divorce And Separation In South Carolina
By Guy Vitetta

Regardless of the type of divorce process you choose to use, it is important to identify your marital estate. The marital estate is defined by the South Carolina Equitable Apportionment Statute and generally comprises all assets and debts acquired by either party during the marriage, regardless of title. As you can guess, there are numerous exceptions to this rule, so discuss this issue carefully with your attorney. For starters, however, you should begin to gather the following information, regardless of how it was obtained or who obtained it, as long as it was obtained during the marriage. Gather information on an asset used during the marriage, regardless of when it was obtained.

An example of an "asset" would be your residence, a car, a boat, a valuable piece of artwork, a retirement account, or an investment account. An asset is anything that is worth money! Don't worry about loans on the assets (such as your mortgage or a car loan), because you will be listing all of these debts separately. The result will be your "net" marital estate.

Here is a brief checklist to help guide you with this process. It is by no means a comprehensive list, so anticipate that your attorney will need more information, but it is a good starting place.

Income/ Assets:

• Income tax returns for the previous five years

• Retirement account statements; one from the date of marriage, one current.

• Estimated valuation of all real estate acquired during the marriage

• Estimated value of the marital residence, if owned

• Statements from current investment accounts

• Statements from college savings accounts for minor children

• Estimated (Blue Book) value of all automobiles

• Itemization of all valuable artwork, jewelry, etc. with estimate of values

• Copies of all trusts

• Copies of all whole life insurance policies or annuities

• Recent statements from whole life and annuity policies

• Copies of all corporate papers; Sub S Corps, LLCs etc.

Debts

• Current credit card statements

• Current mortgage balances (1st, 2nd, 3rd, etc….)

• Automobile loans

• Promissory notes

• Student loans

• Secured loans

• Other debts and obligations (unsecured)

In complicated cases, a financial professional is helpful to assist in establishing the value of the marital estate. In the more straightforward cases, you and your lawyer can establish the values using and Excel or Numbers spreadsheet, or just a pencil and paper!

The bottom line is that you want to identify everything that was obtained during the marriage, or used as marital property during the marriage regardless of how it was obtained.

HOT TIP: You will also want to have this information very well organized for your attorney or financial professional. You pay these people by the hour, so the less time they need to spend organizing your financial matters, the less money you will pay for this service!

Guy Vitetta, Attorney at Law, Charleston, S.C.

http://www.sccollaborativelawdivorce.com

http://www.guyvitetta.com

171 Church Street, Suite 160
Charleston, South Carolina 29401

(843) 302-2050

(843) 577-0460 FAX

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