South Carolina Code 15-79-125. Notice of Intent to File Suit as prerequisite to filing action; subpoena of medical of records; depositions; mandatory prelitigation mediation; initiating action; ADR participation

(A) Prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice , the plaintiff shall contemporaneously file 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 civil action. The notice must name all adverse parties as defendants, must contain a short and plain statement of the facts showing that the party filing the notice is entitled to relief, must be signed by the plaintiff or by his attorney, and must include any standard interrogatories or similar disclosures required by the South Carolina Rules of Civil Procedure. Filing the Notice of Intent to File Suit tolls all applicable statutes of limitations. The Notice of Intent to File Suit must be served upon all named defendants in accordance with the service rules for a summons and complaint outlined in the South Carolina Rules of Civil Procedure.

(B) After the Notice of Intent to File Suit is filed and served, all named parties may subpoena medical records and other documents potentially related to the medical malpractice claim pursuant to the rules governing the service and enforcement of subpoenas outlined in the South Carolina Rules of Civil Procedure. Upon leave of court, the named parties also may take depositions pursuant to the rules governing discovery outlined in the South Carolina Rules of Civil Procedure.

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Terms Used In South Carolina Code 15-79-125

• Affidavit : A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
• Complaint : A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
• Discovery : Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
• Interrogatories : Written questions asked by one party of an opposing party, who must answer them in writing under oath; a discovery device in a lawsuit.
• Jurisdiction : (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
• Medical malpractice : means doing that which the reasonably prudent health care provider or health care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances. See South Carolina Code 15-79-110
• Obligation : An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
• Plaintiff : The person who files the complaint in a civil lawsuit.
• Statute of limitations : A law that sets the time within which parties must take action to enforce their rights.
• Subpoena : A command to a witness to appear and give testimony.
• Summons : Another word for subpoena used by the criminal justice system.
• Venue : The geographical location in which a case is tried.

(C) Within ninety days and no later than one hundred twenty days from the service of the Notice of Intent to File Suit, the parties shall participate in a mediation conference unless an extension for no more than sixty days is granted by the court based upon a finding of good cause. Unless inconsistent with this section, the Circuit Court Alternative Dispute Resolution Rules in effect at the time of the mediation conference for all or any part of the State shall govern the mediation process, including compensation of the mediator and payment of the fees and expenses of the mediation conference. The parties otherwise are responsible for their own expenses related to mediation pursuant to this section.

(D) The circuit court has jurisdiction to enforce the provisions of this section.

(E) If the matter cannot be resolved through mediation, the plaintiff may initiate the civil action by filing a summons and complaint pursuant to the South Carolina Rules of Civil Procedure. The action must be filed:

(1) within sixty days after the mediator determines that the mediation is not viable, that an impasse exists, or that the mediation should end; or

(2) prior to expiration of the statute of limitations , whichever is later.

(F) Participation in the prelitigation mediation pursuant to this section does not alter or eliminate any obligation of the parties to participate in alternative dispute resolution after the civil action is initiated. However, there is no requirement for participation in more than one alternative dispute resolution forum following the filing of a summons and complaint to initiate a civil action in the matter.