Case Overview

Frank W. Kerr, as Personal Representative for the Estate of Marta Butler
Kerr, Deceased, Appellant, v. Richland Memorial Hospital, Respondent.

In 2003, Mr. Kerr filed this medical malpractice lawsuit in circuit court in Richland County pursuant to the South Carolina Tort Claims Act.¹ Mr. Kerr alleged his wife was misdiagnosed by a physician under contract with the hospital in 1996. Specifically, he maintained the physician interpreted a mole taken from Mrs. Kerr to be free of cancer cells, when it actually contained evidence of skin cancer. Mr. Kerr alleged Mrs. Kerr was diagnosed in 2001 with widespread skin cancer and sometime later they learned the mole examined in 1996 had been misdiagnosed. Mrs. Kerr died in 2002, allegedly from skin cancer.

The hospital filed a motion for summary judgment on the ground that the action was filed too late and that the hospital was not liable for acts of independent contractors such as the physician. The circuit court judge granted the motion for summary judgment, finding there was no genuine issue of material fact to submit to the jury.

Mr. Kerr filed an appeal in the South Carolina Court of Appeals. The appeal was transferred to the South Carolina Supreme Court. Mr. Kerr argues the hospital had a nondelegable duty to provide pathology services through its pathology department and it can be held liable for a breach of that duty even when the acts and omissions were those of an independent contractor. Mr. Kerr also argues the lawsuit was timely because it was filed within two years of when the misdiagnosis was discovered, which is the time period provided in the South Carolina Tort Claims Act. Mr. Kerr argues another statute that addresses the time period in which medical malpractice actions must be filed does not apply because it is not referenced by the Tort Claims Act.

The South Carolina Supreme Court will hear oral arguments on these issues on Wednesday, April 8, 2009, at 10:30.

¹ The South Carolina Tort Claims Act provides the procedure for bringing negligence actions against governmental entities.  Richland Memorial Hospital is a governmental entity.

Case Briefs

Oral Arguments

View Oral Arguments
(48 minutes playing time)