August 6, 2014 South Carolina Supreme Court published opinions

Brouwer v Sisters of Charity Providence Hospitals

Brouwer filed a notice of intent to sue Hospitals and other medical providers for malpractice. She did not file an expert affidavit arguing her allergic reaction to latex was within common knowledge. The circuit court applied then binding Court of Appeals precedent and dismissed her notice for failure to file an expert affidavit. The Court, 4-1 reversed. The majority noted that the precedent relied upon by the circuit court had recently been reversed by the Court and thus the common knowledge exception applied to notices of intent. Here, the allergic reaction to a substance which Hospitals and the providers had been given actual notice that Brouwer was allergic to was held to within common knowledge and thus no affidavit was required. The dissent argued that the decision reversing the Court of Appeals precedent was wrongly decided and the dismissal here should be affirmed.

In the Matter of former Abbeville County Magistrate George T. Ferguson

Fergusson agreed to a public reprimand and to not seek judicial office again without written permission from the Court based on his conviction for favorable disposition of cases before him in exchange for sexual favors. The Court accepted the agreement and imposed the reprimand and restriction on seeking future judicial office.

Davis v Parkview Apartments, a South Carolina Limited Partnership

Davis appealed the dismissal of his complaints as a penalty for discovery violations and the denial of his recusal motion as to the trail judge. The Court, with one justice dissenting in part, affirmed. The majority held that only the dismissal order was before the Court not the underlying discovery orders. Thus, review was limited to the dismissal and attorney fee award. The majority held that Davis and his fellow plaintiffs willfully refused to comply with discovery orders in order to prevent evidence damaging to their claim going to the defendants justified dismissal particularly where the trial judge had offered many opportunities to comply. The Court affirmed the denial of the recusal motion holding adverse rulings are no grounds for recusal, the timing was suspect and mere social relations with counsel are not a basis for recusal. The Court noted that allowing recusal based on friendship or social relations would make it impossible for many judges to hold court at all. The partial dissent argued that the discovery orders were before the court, that the order to produce attorney client communications was based on an erroneous waiver rule adopted by the trial court from nearly 40 year old highly criticized federal district court case that does not protect attorney client privilege and thus should never have been applied here and that the discovery orders were too vague to sever as a basis for a contempt order.

In the interests of Kevin R. a Juvenile Under the Age of Seventeen

Kevin R. appealed his delinquency adjudication arguing he was entitled to a jury trial under the state constitution. The Court, with three justices concurring in part and dissenting in part, affirmed. All five justices held that the Court’s recent rejection of a jury trial right in juvenile cases applied and two argued it is dispositive. Three justices responded to arguments in an amicus brief holding there is no evidence the juries provide more reliable determinations than judges in juvenile adjudications, judges are presumed to be neutral and requiring juries would impose significant burdens on counties and courts. Two justices felt it unnecessary to address these arguments. Two justices argued that juveniles must be granted a right to transfer their case to a jury trial court while three justices did not agree this was so.

 

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