As it well know, in the vast majority jurisdictions, when you sue a professional (lawyers, doctors and others) in negligence, a certificate a merit issued by a professional of the same profession is necessary as a condition to bring the action. SC Code 15-36-100 (B) provides that “in an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina … the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.”  The list of the professionals against the malpractice of whom an expert affidavit is needed is at SC Code 15-36-100(G).

In a recent decision of the federal district court of SC (David Norton, J.) held that where the plaintiffs only sue a business entity and not professionals in their malpractice claim, SC Code 15-36-100 (B) is not applicable. Hence, a certificate of merit needed not to be filed as part of the complaint. For this reason, the plaintiffs survived the motion to dismiss. Village Park Homes LLC v. Hancock Askew & Co LLP, 9:16-cv-02828.

This is not the first time that the requirement of the certificate of merit is interpreted by courts and found unnecessary. In fact, courts have recognized a number of circumstances in which the affidavit of merit is not required.

For example in one SC case, In Grier v. AMISUB of S.C., Inc., 397 S.C. 532, 725 S.E.2d 693 (2012), a medical malpractice action, the plaintiff’s expert affidavit was from a nurse who opined that the defendant breached the standard of care in multiple respects and those breaches were a contributing cause of the decedent’s death. However, the nurse was not qualified to render an opinion about the cause of death. On the defendant’s motion, the trial court dismissed the complaint on the ground that the affidavit was defective because it did not contain a competent opinion on causation. The Supreme Court reversed. Applying a number of principles of statutory construction, the court ruled that the statute did not require an opinion on causation.

In another medical malpractice action the court distinguished between claims of ordinary negligence, which do not require the filing of an expert affidavit, and malpractice claims, which do. Plaintiff became dizzy, began experiencing headaches, and was taken to the hospital where she was admitted into the emergency room but was left unattended. Prior to receiving treatment, the plaintiff fell and broke her foot. The hospital moved to dismiss arguing that the claim was for medical malpractice, as opposed to ordinary negligence, and the plaintiff failed to comply with the expert affidavit requirements. The court held that the claim was for ordinary negligence because the injury occurred prior to the plaintiff receiving medical care and was not founded on negligent administration of medical care. Dawkins v. Union Hospital District, 408 S.C. 171, 758 S.E.2d 501 (2014).

There are likely to be other cases in which an affidavit of merit may not be required. For example, suppose a case in which expert testimony is not required because the negligence is within the common experience of laypersons, for example missing the statute of limitations. If expert testimony is not required to establish the case-in-chief, an expert affidavit should be unnecessary.

For more information, Nathan M. Crystal.