THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Sharon Brown, as Personal Representative of the Estate of Ronnie Lee Brown,        Petitioner,

v.

Sally Calhoun,        Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Greenville County
John W. Kittredge, Circuit Court Judge

Memorandum Opinion No. 2004-MO-013
Submitted February 19, 2004 - Filed April 5, 2004

REVERSED

Sharon Brown, of Spartanburg, pro se.

Sally G. Calhoun, of Beaufort, pro se.

JUSTICE MOORE:� We granted certiorari to determine whether the Court of Appeals erred by affirming the trial court�s decision granting respondent�s summary judgment motion. [1] � We reverse.

FACTS

Petitioner brought this legal malpractice action against respondent, attorney Sally Calhoun, based on respondent�s failure to file a medical malpractice action against Spartanburg Regional Medical Center (SRMC) within the two-year statute of limitations period.

In June 1990, officers from the Spartanburg Public Safety Department arrested Ronnie Lee Brown, at approximately 4:45 p.m., after pursuing him on foot for thirty minutes.� When the officers attempted to place Brown in jail, the officer in charge of the jail refused to accept him because he was having difficulty breathing and could not stand up.� Brown told the officers he had asthma.� The officers then transported Brown to SRMC, arriving at 5:12 p.m.� Once inside the hospital, the officers informed hospital personnel that Brown was complaining of breathing problems and asthma.� When Brown was taken to an examining room, he was unable to sit up in a chair.

At 5:50 p.m. it was discovered that Brown, who had not yet been examined by medical personnel, had no pulse or respiration.� He was pronounced dead and an autopsy revealed that Brown died from �acute cardio-respiratory arrest due to cocaine ingestion.�

Shirley Rice, Brown�s mother, retained respondent in June 1990 �to prosecute all available claims� arising from Brown�s death.� Thereafter, Rice did not communicate with respondent for over two years because she was incarcerated for forgery.� In the meantime, the statute of limitations for bringing an action against SRMC had expired.� Shortly before her release from prison, Rice wrote respondent and demanded suit be brought.� Due to Rice�s incarceration, petitioner was appointed personal representative of Brown�s estate.

In May 1993, respondent, on behalf of petitioner, filed an action in federal court, pursuant to 42 U.S.C. �� 1983 and 1988, against the officers involved in Brown�s arrest.� Subsequently, respondent�s motion to withdraw as counsel was granted and petitioner retained another attorney.� The District Court granted the officers� motion for summary judgment finding no evidence to support petitioner�s claim that the officers acted with deliberate indifference to Brown�s medical needs.� After firing her attorney, petitioner retained another attorney to file an appeal with the Fourth Circuit Court of Appeals.� The Fourth Circuit affirmed the district court�s decision.� Brown v. Odom, 56 F.3d 60 (4th Cir.), cert. denied, 516 U.S. 964 (1995).

In April 1996, petitioner filed a legal malpractice action against respondent based on respondent�s failure to file a medical malpractice action against SRMC within the two-year statute of limitations period.� Respondent filed an answer in which she alleged that her client, Rice, disappeared and respondent had no further contact with her until Rice wrote to her from jail �shortly before the statute of limitations was to run in June 1993.� [2]

Respondent further alleged she did not believe a valid cause of action existed against the hospital.� She maintained that in order to prevail on the legal malpractice action, petitioner had to show she could have prevailed in the action against SRMC.� Respondent stated, due to the nature of cocaine-induced deaths, no expert consulted could say with any degree of certainty that Brown could have been saved.

Respondent filed a summary judgment motion and submitted affidavits from two physicians, one of whom performed the autopsy on Brown, stating that while Brown�s chances of survival would have been enhanced had a physician immediately seen him upon arrival at SRMC, they could not say with any degree of certainty that he could have been saved.� No action was taken on the motion at that time.� The case was later set for trial in December 1999.� In October 1999, respondent filed a Memorandum in support of her summary judgment motion.� Respondent submitted the affidavit of Dr. Lester M. Haddad, who is an expert on cocaine-induced deaths, which stated that Brown�s life could not have been saved had he been attended to immediately upon arrival at SRMC.

Petitioner filed a return in the summary judgment motion wherein she argued that based on the affidavit of her expert witness, Dr. Alfred Frankel, respondent�s motion should not be granted.� Dr. Frankel is an emergency medicine physician licensed in Florida whose affidavit was obtained by petitioner�s counsel in October 1996.

Dr. Frankel stated in his affidavit that he had reviewed Brown�s medical and hospital records, the autopsy report and affidavits from eyewitnesses on the scene during Brown�s arrest and medical treatment.� He stated that based on �a reasonable degree of medical certainty, . . . medical personnel at [SRMC] deviated from the standard of care during an emergency . . .� by failing to timely seek medical attention for Brown, failing to triage Brown and take his vital signs in an appropriate or timely manner, failing to take an appropriate history, failing to perform an appropriate physical examination, and failing to provide appropriate cardiac or ventilatory support to prevent Brown from going into cardiopulmonary arrest.� Dr. Frankel further stated that, based upon a reasonable degree of medical certainty, the time that elapsed between the time Brown was transported to the hospital and the time he was seen by medical authorities was unreasonable.� Finally, he stated he was �convinced to a reasonable degree of medical certainty that . . . Brown died as a direct result of the negligence on the part of the nurses and doctors at [SRMC] . . . and that his death was the result of acute respiratory arrest secondary to cocaine ingestion which clearly could have been prevented with earlier appropriate medical care.�

Petitioner also provided an affidavit from attorney Thomas E. Moseley.� Moseley opined that �[respondent] committed professional malpractice and deviated from the applicable standard of care in her handling of the underlying case.�

The trial court granted respondent�s summary judgment motion, because petitioner had failed to present any evidence establishing a question of fact as to the element of proximate cause in her medical malpractice action.� The court found the only evidence petitioner presented on the issue of proximate cause was Dr. Frankel�s conclusory and speculative affidavit.� The court further found that while Dr. Frankel�s opinions may find acceptance under the �loss of chance� doctrine, they were not beneficial in a state such as South Carolina which does not recognize that doctrine but instead requires a plaintiff who relies on expert testimony to introduce evidence that the defendant�s negligence most probably resulted in the injuries alleged.� The court found it was impossible to determine from Dr. Frankel�s affidavit whether Mr. Brown�s life most probably would have been saved had he received treatment any earlier.� The Court of Appeals affirmed.

ISSUE

Did the Court of Appeals err by affirming the trial court�s grant of summary judgment to respondent?

DISCUSSION

Petitioner argues summary judgment should not have been granted to respondent because Dr. Frankel�s affidavit creates a question of fact as to whether she would have been successful in her underlying medical malpractice claim.

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.� Cunningham ex rel. Grice v. Helping Hands, Inc., 352 S.C. 485, 575 S.E.2d 549 (2003).� In determining whether any triable issues of fact exist for summary judgment purposes, the evidence and all the inferences that can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party.� Id.� The Court must construe all ambiguities, conclusions, and inferences arising from the evidence against the moving party; however, the opposing party may not rest upon mere allegations or denials, but must respond with specific facts showing a genuine issue.� City of Columbia v. Town of Irmo, 316 S.C. 193, 447 S.E.2d 855 (1994).�

To prove legal malpractice, the plaintiff must establish:� (1) the breach of a duty by the attorney, (2) proximate causation, and (3) damages.� Brown v. Theos, 345 S.C. 626, 550 S.E.2d 304 (2001).� Additionally, the plaintiff must generally establish the standard of care by expert testimony.� Smith v. Haynsworth, Marion, McKay & Geurard, 322 S.C. 433, 472 S.E.2d 612 (1996).� Moreover, the plaintiff must show he or she �most probably� would have been successful in the underlying suit if the attorney had not committed the alleged malpractice.� Brown v. Theos, supra.�

The underlying suit involved in this case is a medical malpractice action.� In a medical malpractice action, the plaintiff must present (1) evidence of the generally recognized practice and procedures that would be exercised by competent practitioners in a defendant doctor�s field of medicine under the same or similar circumstances and (2) evidence that the defendant doctor departed from the recognized and generally accepted standards, practices, and procedures in the manner alleged by the plaintiff.� Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 487 S.E.2d 596 (1997).� Further, unless the subject is a matter of common knowledge, the plaintiff must use expert testimony to establish both the standard of care and the defendant�s failure to conform to that standard.� Id.� A medical malpractice plaintiff who relies solely on expert testimony must introduce evidence that the defendant�s negligence most probably resulted in the injuries alleged.� Id.

Dr. Frankel�s affidavit creates a genuine issue of material fact as to whether SRMC�s delay in treating Ronnie Brown was the proximate cause of his death.� Dr. Frankel, in his affidavit, states he based his opinion on his review of Ronnie Brown�s medical and hospital records, his autopsy report, and affidavits from eyewitnesses to his arrest and medical treatment.�� He further states he is familiar with the standards of medical practice and the standard of care relevant to emergency medical practice.� Dr. Frankel sets forth five specific deviations from the standard of care.� He then concludes he is �convinced to a reasonable degree of medical certainty that Ronnie Brown died as a direct result of the negligence� of SRMC medical personnel and that his death �clearly could have been prevented with earlier appropriate medical care.�� Given Dr. Frankel clearly states the basis of his opinion and clearly delineates how SRMC deviated from the standard of care, the affidavit is not conclusory or speculative as found by the trial court.

As stated previously, the trial court found that, while Dr. Frankel�s opinions may find acceptance under the �loss of chance� doctrine, those opinions were not helpful in South Carolina because this state does not recognize that doctrine.

The �loss of chance� doctrine permits recovery when the delay in proper diagnosis or treatment of a medical condition results in the patient being deprived of a less than even chance of surviving or recovering.� Taylor v. Medenica, 324 S.C. 200, 479 S.E.2d 35 (1996).� This Court has rejected the �loss of chance� doctrine because it does not comport with the South Carolina standard that, in a medical malpractice action, the plaintiff who relies on expert testimony must introduce evidence that the defendant�s negligence most probably resulted in the injuries alleged.� Id. (citing Jones v. Owings, 318 S.C. 72, 456 S.E.2d 371 (1995)).� In rejecting the doctrine, the Court found the �loss of chance� doctrine was fundamentally at odds with the requisite degree of medical certainty necessary to establish a causal link between the patient�s injury and the physician�s tortious conduct, and that, instead, legal responsibility under the doctrine was assigned based on the mere possibility that a physician�s negligence was a cause of the ultimate harm.� Jones, supra.

The trial court erred by finding Dr. Frankel�s opinions come within the scope of the �loss of chance� doctrine.� Dr. Frankel did not state in his affidavit that the delay in diagnosing and treating Ronnie Brown resulted in his having a lesser chance of survival than he would have had had he been diagnosed earlier.� Instead, Dr. Frankel states he is convinced to a reasonable degree of medical certainty that Ronnie Brown died as a direct result of SRMC�s negligence.� He further stated Ronnie Brown�s death could have been prevented with earlier appropriate medical care.� Both of these statements meet the requirement that a medical malpractice plaintiff, relying solely on expert testimony, must introduce evidence that the defendant�s negligence most probably resulted in the injuries alleged.� See Baughman v. American Tel. and Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991) (not necessary that expert actually use words �most probably;� sufficient if testimony impresses that opinion represents expert�s professional judgment as to most likely one among possible causes).

Because Dr. Frankel�s affidavit creates a genuine issue of material fact as to whether SRMC�s negligence was the proximate cause of Ronnie Brown�s death, there is likewise a genuine issue of material fact as to whether Brown can show she most probably would have been successful in her underlying medical malpractice suit if respondent had not committed malpractice.� Accordingly, the Court of Appeals erred by affirming the trial court�s decision granting respondent summary judgment.

REVERSED.

TOAL, C.J., WALLER and PLEICONES, JJ., concur.� BURNETT, J., not participating.