The South Carolina Supreme Court held that an expert affidavit filed with
a notice of intent to file a medical malpractice lawsuit satisfied the
requirement to commence such a lawsuit without the need to attach a second
affidavit to the subsequently filed complaint. The decision isWilkinson v. East Cooper Hospital, et al, opinion number 27423 filed July 23, 2014.
Generally, in South Carolina, a lawsuit filed against a professional requires
that an affidavit of an expert attesting to at least one negligent act
of the defendant be attached to the Complaint. For those kinds of lawsuits,
there is no requirement that the plaintiff first file and serve a Notice
of Intent on the defendant with an affidavit from an expert and in engage
in pre-litigation mediation before actually filing a lawsuit like there
is in a medical malpractice case.
The Court made clear that “the plaintiff must properly initiate the
claim with the NOI and attempt to resolve the case within a short timeframe.
If the parties fail to resolve the case through mediation, the case almost
immediately progresses as a customary professional negligence action.
Thus, to require a second expert affidavit at the litigation stage in
the proceeding leads to an absurd result as the plaintiff's claim
has not changed during the pre-litigation proceedings.”
This decision is “consistent with the Court's decisions to permit
medical malpractice cases to proceed on the merits rather than to affirm
unwarranted dismissals based on technical noncompliance with the medical
A copy of the decision is available from the
Supreme Court website