A Perspective on the Loss of a Wrongful Death Claim prior to the Death
In a recently delivered South Carolina Circuit Court Opinion, it was determined that a wrongful death claim may end prior to the actual death by the application of the statute of limitations in conjunction with the South Carolina Discovery Rule1 concerning negligence. As quoted from the order. “Clearly the statutory limitation period begins to run from the date when the injury resulting from the wrongful conduct either is discovered or may be discovered by the exercise of reasonable diligence.”
The facts of the claim, subject to this order, are facts similar to those many Plaintiff attorneys will see during their careers. A young man notices a knot on his thigh in October 2001, it is diagnosed as a superficial venous thrombosis (SVT)2. The patient continues to under go observation of the SVT until he is referred to a surgeon who agrees to do surgery to remove the knot ill March 2003. The knot is removed and pathology shows that this knot is actually Leiomyocarcinama, which is malignant. The patient lives until December 12, 2006, before succumbing to the cancer.
A medical malpractice claim was filed in 2005 by the Plaintiff against one of the physicians in question, however another physician was not included under the Plaintiff’s direction. In December 2006, the Plaintiff died and his daughter was appointed the Personal Representative. The personal representative now wishes to amend the complaint to include the other physician. Upon the location of an expert and the completion of the new presuit requirements instituted for actions occurring after July 1, 20054, the complaint is amended in December 2007. The complaint was allowed to be amended to include the wrongful death claim and the other physician. Immediately a motion to dismiss the wrongful death claim against the added physician is filed by the Defendant’s counsel, as being in violation of the statute of limitations.
The basis of the motion to dismiss the claim is S.C. Code § 15-3-545(A) (Supp. 2001):
“Any action… to recover damages for injury to the person arising out of any medical. surgical, or dental treatment, omission, or operation by any licensed health care provider… must be commenced within three years from the date of treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence, or as tolled by this section.”
Unfortunately. the proper statute to apply for a cause – action of wrongful death would be as stated by the South Carolina Court of Appeals:
“The wrongful death statute, commonly referred to as Lord Campbell’s Act, created a new cause of action that was not recognized as common law. S.C. Code AIM. § 15-51-10 (1976 & Supp. 2001);… A wrongful death cause of action does not exist before death and arises only upon the death of the injured person… The statute of limitations applicable to wrongful death actions provides that the period begins to run upon the death of the person. S.C. Code Ann. § 15-3-530 (6) (1976 & Supp. 2001).”5
It is recognized that there is an unsettled issue in South Carolina Law as to whether a decedent’s failure to timely file a personal injury action can ever operate to bar a wrongful death claim timely filed after his death. The court went on to quote from an order written in 1948. “A new statutory right is created by § 15-51-10 in the personal representative of the decedent. which can only be maintained if the decedent, had he lived, could have maintained such an action. If the decedent never had a cause of action, none accrues under the wrongful death statute.”6 The Court only states “could”; it does not state that the decedent must have acted upon the claim. Further, it must be noted that the wrongful death, though related to the negligence, is a separate cause of action triggered by the death and therefore § 15-51-10 does create an action that could not have been maintained during the life of the decedent.
S.C. Code Ann. § 15-51-10, however, does provide as follows:
“Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony. In the event of the death of the wrongdoer, such cause of action shall survive against his personal representative.”
S.C. Code Ann. § 15-51-10 (Supp. 2001) (emphasis added). Thus, the existence of a death action is clean conditioned on whether the “wrongful act is such as would, if death had not ensued, have entitled the parry injured to maintain an action and recover damages in respect thereof.” This raises a question of statutory construction as to whether a decedent’s failure to timely file a personal injury somehow changes the character of the wrongful act such that the decedent could not “maintain an action and recover damages” within the meaning of the statute. The South Carolina Supreme Court has not vet addressed this question.
It is submitted that the South Carolina Supreme Court would construe the Wrongful Death Act as not conditioning a death action on the decedent’s failure to timely file a personal injury. Indeed, the plain language of the statute precludes this construction.
The South Carolina Supreme Court has stated that this is the only limitation in the statute:
“The only limitation placed by the Legislature in the foregoing statute upon the right to bring an action for wrongful death is that the “act, neglect or default” must be “such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof.”7
The timely filing by the decedent of a personal injury action accordingly is simply not a condition of the statute. This reasoning is consistent with Wearer v. Lentz, 348 S.C. 672, 678-79, 561 S.E.2d 360 (Ct. App. 2002) wherein the Court of Appeals ruled that the personal representative could sue under the wrongful death statute, even though the Decedent had not filed a medical malpractice action within the applicable limitations period.
Further, S.C. Code Ann. § 15-3-530(6) (Supp. 2001) — which provides a three year limitations period for death actions “the period to begin to run upon the death of the person on account of whose death the action is brought” — would be rendered meaningless if such a limitation were accurate.8
The public policy is in support of the Plaintiffs right to a claim, due to the implementation of the six year statute of repose already applied through the medical malpractice statute9 to protect a defendant from a prolonged period of liability. A Plaintiff has a constitutional right to a remedy for a wrong.10 Construing the wrongful death statute as barring the Plaintiff’s remedy before the cause of action even accrued violates this constitutional provision.
Quoting Judge Frank’s dissent in Dirwher r. Marlin Firearms Co., 198 F.2d 821. 823 (2d Cir. 1952) condemning the “Alice in Wonderland” effect:
“Except in topsy-turvy land, you can’t die before you are conceived, or be divorced before you ever marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepted, as a sort of logical “axiom”, that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i.e., before a judicial remedy is available to a plaintiff.”
- McClain v. Jarrard, M.D., 354 S.C. 218, 220, 580 S.E.2d 763 (S.C. App. 2003) (citing Wilson V. Shannon, 299 S.C. 512, 513, 386, S.E.2d 257, 258 (S.C. App. 1989); see also: Strong, supra; Knox v. Greenville Hosp. System, 608 S.E.2d 459 (S.C. App. 2005); Arant v. Kressler, 489 S.E.2d 206 (1997); Preer v. Mims, 476 S.E.2d 472 (1996), Anderston v. Short, 475 (1996)
- Superficial venous thrombosis is a blood clot in a vein of the upper or lower extremities or, less commonly, in one or more veins of the chest or breast (Mondor’s disease).
- A combined leimyoma and sarcoma. Usually, a tumor of the smooth muscle. (Taber’s Cyclopedic Medical Dictionary).
- S.C. Code Ann. § 15-79-125 and S.C. Code Ann. § 15-36-100 were assumed to apply due to the new cause of action, wrongful death, occurring after the July 1, 2005 deadline, in relation to the medical malpractice.
- Weaver v. Lentz, 348 S.C. 672, 678-79, 561 S.E.2d 360 (Ct. App. 2002).
- Scott r. Greenville Pharmacy Inc., 212 S.C.485, 48 S.E.2d 324, 326 (1948).
- Fowler v. Fowler, 242 S.C. 252, 255, 130 S.E.2d 568 (1963).
- Miller v. Estate of Sperling, 166 N.J. 370, 382-83, 766 A.2d 738 (2001) (“[e]very action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter.”) N.J.S.A. 2A:31-3.
- S.C. Code Ann. § 15-3-545(A) (Supp. 2001).
- SC Const. Art. I § 9.