THE STATE OF SOUTH CAROLINA

In the Court of Appeals


APPEAL FROM CHARLESTON COUNTY

Court of Common Pleas

Mikell R. Scarborough, Presiding Judge


Case No. 2004-CP-10-1001


Nitus Joanne Linog,                                                    Appellant,

v.

Mark Yampolsky, DDS and

Eloise Bradham, MD                                                  Respondents.

                                                                   


APPELLANT LINOG’S RETURN TO
AMICUS CURIAE BRIEF


  Brooks R. Fudenberg, SC Bar#72019
14 Ashe Street
Charleston, SC   29403
(843) 723-0450

  Geoffrey H. Waggoner, SCBar#5766
Post Office Box 865
Mt. Pleasant, SC   29465
(843) 972-0426

  Attorneys for Appellant Linog


TABLE OF CONTENTS

Table of Authorities.......................................................................................................... ii

Statement of Issue............................................................................................................ 1

Argument.......................................................................................................................... 1

Conclusion........................................................................................................................ 3


TABLE OF AUTHORITIES ADDRESSED

Cases

Elkins v. The United States, 364 U.S. 206 (1960).......................................................... 1-2

Fleming v. Asbill, 326 S.C. 49, 483 S.E.2d 751 (SC 1997).............................................. 2

Tenney v. Branhove, 341 U.S. 367 (1951).................................................................... 1-2

Other Authorities

Rule 213, SCACR............................................................................................................ 1


ISSUE

I.  Whether this Court should hold, as a matter of law, that South Carolina does not recognize a cause of action for medical battery based on revocation of informed consent by a patient while under the influence of mind-altering anesthesia.

ARGUMENT

The Brief Amicus Curiae of the South Carolina Medical Association (hereinafter, "Amicus Brief") argues that this Court should “hold that South Carolina does not recognize a cause of action for medical battery based on revocation of informed consent by a patient while under the influence of mind-altering anesthesia."  See the Conclusion to that Brief, Amicus Brief at 10.  Amicus urges this Court to reject an approach that would allow the jury to determine whether consent was revoked. Amicus Brief, at 3, 9.  Amicus maintains, “A holding less broad will disrupt medical practice in operating rooms . . . .” Id. at 9. 

Without waiving her claim that this issue is not properly before the Court as an issue on appeal as presented by the parties and as required by Rule 213, SCACR, Appellant points to two lines of reasoning why the Court should not so hold.  The first reason the Court should not so hold is that Amicus presents no on-point authority for such a position.  Instead, Amicus relies on a series of stretched analogies.  

For example, Amicus cites to constitutional cases such as Tenney v. Branhove, 341 U.S. 367 (1951) and Elkins v. The United States, 364 U.S. 206 (1960).  Tenney concerned state constitutional provisions providing legislators immunity for statements made on the floor of State legislatures, and the federalism issues of whether Congress had authority to override those state constitutional provisions, and whether Congress had in fact exercised such power.  The Court held that even if Congress had that power, Congress had not exercised it. 341 U.S. at 376.  That is easily distinguishable.  Elkins concerned the exclusionary rule under the Fourth Amendment, obviously distinguishable, and specifically concerned federalism issues, such as whether the legality of a search and seizure in certain prosecutions was to be determined under state or instead under federal law.  Again, this is obviously distinguishable.

Similarly for the proposed analogy to court-appointed guardian ad litems ("GAL") in private custody proceedings,  Amicus cites Fleming v. Asbill, 326 S.C. 49, 483 S.E.2d 751 (SC 1997).  However, in addition to the obvious differences between GAL's and doctors, in that case, the Court found it important that  (1) the GAL had not sought the position, 326 S.C. at 56, 483 S.E. 2d at 755, and (2) all a GAL could do was recommend--there remained ample judicial review of the GAL's work. 326 S.C. at 57, 483 S.E. 2d at 755.  Further, (3) a guardian ad litem is a representative of the court. Id.  None of these factors are present here.

The other analogies are similarly stretched.

The second reason for the Court to decline Amicus’ proposed rule is more practical:   the proposed rule would be the basis for absurd results.  For example, in the case of a patient who had been administered “mind altering drugs” (to impede the memory of the procedure), as well as topical anesthetic (to block the pain), a surgeon would have full authority to continue the procedure, without fear of legal consequence, even as the pain blocker failed, and the patient screamed out in protest.

The law could not intend such a result.

CONCLUSION

This Court should not be the first court to ever hold what Amicus would have it hold.  With no remotely on-point case nor any statute, and on an issue raised by Amicus rather than a party, it would be an exercise in blatant judicial activism.  And, in this instance, the proposed new rule would be most unfortunate. 

  Respectfully Submitted,
 

 

 

June _______, 2007 _______________________________

Brooks R. Fudenberg, SC Bar #72019
14 Ashe Street
Charleston SC  29403
(843) 723-0450

Geoffrey H. Waggoner, SC Bar # 5766
PO Box 865
Mount Pleasant, (Charleston) SC 29465
(843) 972-0426

Attorneys for Appellant Linog