South Carolina Medical Malpractice Liability Insurance Joint Underwriting Association
The realization that malpractice insurance was not readily available to doctors
led the South Carolina General Assembly in 1975 to establish the
South Carolina Medical Malpractice Liability Insurance Joint Underwriting Association
(SCJUA) and a year later establish a voluntary medical malpractice patient compensation
fund (PCF).
The JUA and PCF are two separate entities. The South Carolina JUA is a non-profit
(non governmental) primary underwriter of medical malpractice insurance. The JUA
writes primary limits up to $200,000/$600,000 on both claims made and Occurrence
forms. It is the largest provider of medical malpractice in South Carolina, and writes
business through every licensed insurance agent in the state. The purpose of the
SCJUA was and continues to be to provide medical malpractice coverage in excess
of an eligible SC healthcare provider's basic insurance coverage.
The PCF is a state agency, formed after the JUA to provide excess coverage above
the JUA’s $200/$600. The PCF writes limits up to $10,000,000/$12,000,000 on both
a claims made and occurrence basis. The PCF will only pay claims above the primary
limits up to the limits purchased. The PCF discontinued unlimited
coverage effective May 1, 2009. The PCF may offer excess limits above other primary
carriers in certain circumstances.
In its almost 30-year history prior to the modern tort reforms enacted in 2005,
the PCF had been criticized as being ineffective against rising medical liability
premiums. Listening to physician input, the state turned its eyes to reforming its
medical liability system through legislative action, which included key civil justice
components included venue reform, abolishing joint and several liability, statute
of repose reform, sanctions to discourage frivolous lawsuits and limits on medical
malpractice non-economic damages.
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South Carolina Medical Liability Tort Reform
South Carolina's first effective foray into comprehensive medical liability tort
reform was achieved in 2005, under the direction of Republican state leadership,
who campaigned on a platform of reforming the state's "long-antiquated" economic
systems.
Entering 2005, there was little argument that South Carolina was facing a healthcare
crisis. Between 1999 and 2004, the medical malpractice premiums for the state's
OB/Gyns had increased 379 percent, and doctors throughout South Carolina were forced
to reevaluate their services in the face of skyrocketing liability costs. One South
Carolina county had seen the number of obstetricians drop from 11 to two during
the course of four years. Both government officials and public citizens were beginning
to worry about access to care.
South Carolina's politicians hammered the point that—without significant tort change—the
state would be left behind economically. They argued that passing tort reform was
especially critical given the fact that neighboring Georgia and a dozen other regional
states had upgraded their laws during the previous twenty months. The Governor's
office used these facts to pass similar legislation, arguing that its neighbor would
lure away South Carolina doctors due to the more favorable legal climate.
In April 2005,
Senate Bill 83 (S83) was signed into law. S83 is a medical liability reform
bill that limits non-economic damages in medical liability cases to $350,000 per
provider, with an overall aggregate limit of $1.05 million. The new law also increased
standards for top-rated witness testimony, provides clean-up language of the joint
and several liability reforms passed in another bill, and contains a provision allowing
for an offer of judgment.
The details of the reform bill are as follows:
- In regard to non-economic damages, S83 set damage limits in medical liability cases
to $350,000 per provider, with an overall aggregate limit of $1.05 million.
- In an action against a medical professionals, S83 increased standards for admitting
top-rated witness testimony by defining an top-rated witness as one who: (1) is
qualified as to the acceptable standard of conduct of the professional whose conduct
is at issue; (2) is licensed by an appropriate regulatory agency; (3) is board certified;
and (4) has actual professional knowledge based on active practice for at least
three to five years, has taught for at least half of his professional time for at
least three to five years, or any combination thereof for at least three to five
years.
- S83 provides for sanctions against lawyers and parties who bring frivolous claims,
including reporting lawyers to the Commission on Lawyers Conduct and required the
Supreme Court to keep a public record of frivolous sanctions.
- In regard to joint and several liability, S83 specifies that if there are multiple
defendants in a civil action, joint and several liability does not apply to any
defendant who is 50 percent or less responsible for the damages.
- In an emergency situation, S83 provides that a physician is not liable for claims
arising out of an emergency situation unless the physician was grossly negligent.
Provides that a physician is not liable in a claim arising out of obstetrical care
rendered in an emergency situation where there is no previous doctor/patient relationship
or where the patient has not received prenatal care, unless the physician was grossly
negligent.
- S83 requires that prior to filing an action, the plaintiff must file a “Notice of
Intent to File Suit,” and the parties must participate in a court-supervised mediation.
If the matter is not resolved through mediation, the plaintiff may initiate the
action within 60 days of the end of mediation or prior to the expiration of the
statute of limitations, whichever is later.
While the medical malpractice reforms of 2005 have not produced a dramatic drop
in liability insurance premiums, they did effectively stall their climb. From 2006
to the present, premiums have held steady, and in some cases, fell by a few percentage
points.
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