Date: 08-20-2001

Case Style: Tatum v. Medical University

Case Number: 25345

Judge: Burnett

Court: Supreme Court of South Carolina

Plaintiff's Attorney: Donald E. Jonas, of Cotty & Jonas, of Columbia, for respondents.

Defendant's Attorney: Robert H. Hood, Barbara W. Showers, and P. Gunner Nistad, of Hood Law Firm, LLC, of Charleston, for petitioner.

Description: Respondent Tatum (Mrs. Tatum) injured her back in the course of her employment with Petitioner Medical University of South Carolina (MUSC). She was treated at MUSC's Employee Health Care Service and diagnosed with a midline broadly-based disc herniation.

Mrs. Tatum was later referred to Dr. Sunil J. Patel, a physician employed by MUSC as an assistant professor and neurosurgeon. Ultimately, Dr. Patel performed three surgeries on Mrs. Tatum's back.

Mrs. Tatum filed a medical malpractice action against MUSC alleging she suffered permanent damage to her spinal cord as a result of Dr. Patel's negligence. Her husband, Respondent Scarbrough, asserted a claim for loss of consortium. MUSC denied the allegations in Mrs. Tatum's complaint and claimed Mrs. Tatum's exclusive remedy was under the Workers' Compensation Act.

Finding workers' compensation was Mrs. Tatum's exclusive remedy, the trial court granted MUSC's motion to dismiss under Rule 12(b)(6), SCRCP. Mrs. Tatum appealed.

The Court of Appeals reversed. It reasoned 1) an employee injured within the scope of employment may maintain a malpractice action against a negligent treating physician; 2) the South Carolina Tort Claims Act prohibits Mrs. Tatum from maintaining a malpractice action against Dr. Patel because he is MUSC's employee 3) the provisions of the South Carolina Workers' Compensation Act preclude her from maintaining a tort action against her employer MUSC; 4) nonetheless, pursuant to the "dual persona" doctrine, Mrs. Tatum may maintain a malpractice action against MUSC, not as her employer, but as a provider of hospital services. Tatum, 335 S.C. 499, 517 S.E.2d 706.

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Under the Tort Claims Act, "[t]he State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained [in the Act]." § 15-78-40. The Tort Claims Act does not create causes of action. Rather, it removes the common law bar of sovereign immunity in certain circumstances, but only to the extent permitted by the Act itself. Summers v. Harrison Constr., 298 S.C. 451, 381 S.E.2d 493 (Ct. App. 1989). The Tort Claims Act specifically provides: "[t]he governmental entity is not liable for a loss resulting from any claim covered by the South Carolina Workers' Compensation Act, except claims by or on behalf of an injured employee to recover damages from any person other than the employer. . .". § 15-78-60 (14).

The Court of Appeals reversed. It reasoned 1) an employee injured within the scope of employment may maintain a malpractice action against a negligent treating physician; 2) the South Carolina Tort Claims Act prohibits Mrs. Tatum from maintaining a malpractice action against Dr. Patel because he is MUSC's employee 3) the provisions of the South Carolina Workers' Compensation Act preclude her from maintaining a tort action against her employer MUSC; 4) nonetheless, pursuant to the "dual persona" doctrine, Mrs. Tatum may maintain a malpractice action against MUSC, not as her employer, but as a provider of hospital services. Tatum, 335 S.C. 499, 517 S.E.2d 706.

Pursuant to the Tort Claims Act, an employee of a governmental entity who commits a tort while acting within the scope of his official duty is generally immune from suit. § 15-78-70 (a) and (b). Instead, a person seeking to file a tort claim against a governmental entity must "name as a party defendant only the agency or political subdivision for which the employee was acting." § 15-78-70(c).

MUSC is a governmental agency subject to the provisions of the Tort Claims Act. Proveaux v. Medical University of South Carolina, 326 S.C. 28, 482 S.E.2d 774 (1997). Accordingly, a physician-employee of MUSC is immune from suit for alleged negligence committed in the course of employment. Id. A tort action against a physician-employee of MUSC must be maintained against MUSC.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Reversed

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None