In Wilkinson v. East Cooper Community Hospital, the Supreme Court of South Carolina reversed and remanded a decision from the Charleston County Circuit Court. In an opinion that included both concurrences and a dissent, the Court stated the issue was “whether Wilkinson’s failure to file an expert witness affidavit with her Complaint warranted the dismissal of her civil action.”
Wilkinson filed a NOI against East Cooper for medical malpractice via S.C. Code of Laws Section 15-79-125. Because the statute of limitations was near, Wilkinson did not file an affidavit of an expert witness with her initial complaint which was filed on September 1, 2011. She did file an expert affidavit on October 1, 2011, i.e. within 45 days of filing the complaint. After required mediation failed, Wilkinson then filed suit against the doctors and hospital.
The Circuit Court granted the hospital’s and doctor’s motion to dismiss with prejudice, finding that Section 15-79-125 required the contemporaneous filing of the expert affidavit with the complaint and thus her September filing did not toll the statute of limitations.
The Supreme Court of South Carolina reversed and remanded, holding that “…Wilkinson’s Complaint was timely and sufficient to properly initiate a civil action for medical malpractice.”