Murphy v. Palmetto Lowcountry

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Tasha Murphy and Steven Murphy, Appellants,

v.

Palmetto Lowcountry Behavioral Health, LLC, and
Steven G. Lopez, M.D., Defendants,

Of whom Steven G. Lopez, M.D., is the Respondent.

Appellate Case No. 2012-212771

Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2014-UP-189
Heard February 5, 2014 – Filed May 7, 2014

AFFIRMED

Marshall H. Waldron, Jr., Ernest Mitchell Griffith and
Otto Edworth Liipfert, III, all of Griffith Sadler & Sharp,
PA, of Beaufort, for Appellants.

Todd W. Smyth and Joshua Steven Whitley, both of
Smyth Whitley, LLC, of Charleston, for Respondent.
PER CURIAM: In this medical malpractice action, Tasha and Steven Murphy
appeal the trial court's order granting summary judgment to Steven G. Lopez,
M.D., arguing the trial court erred in (1) granting Dr. Lopez summary judgment
based upon lack of proximate cause and (2) granting Dr. Lopez summary judgment
on the issue of punitive damages. We affirm.

1. We hold the trial court properly granted summary judgment on the Murphys'
medical malpractice claim against Dr. Lopez. First, we find summary judgment
was proper because the Murphys failed to present evidence on the necessary
element of proximate cause. See Hollman v. Woolfson, 384 S.C. 571, 579, 683
S.E.2d 495, 499 (2009) (noting a professional malpractice claim requires a
showing of the standard of care, a breach of the standard of care, proximate cause,
and damages); David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 247-48, 626
S.E.2d 1, 3-4 (2006) (providing, for a genuine issue of material fact to exist in a
medical malpractice claim, a plaintiff must show the defendant's departure from
generally recognized practices and procedures was the proximate cause of the
alleged injuries and damages). We are inclined to agree with the Murphys'
assertion that the trial court misconstrued their expert's testimony somewhat in
finding Dr. Martin conceded that the failure to draw Tasha's lithium level "had
nothing to do" with Tasha's eventual lithium toxicity. This passage of testimony,
read in context, is not a concession by Dr. Martin that the failure to order the initial
lithium test on Tasha had nothing to do with her eventual lithium toxicity. Rather,
in directly answering the question of whether he was able to say to a reasonable
degree of medical certainty that the failure to order that test caused her to become
toxic or resulted in her toxicity, Dr. Martin replied, "It resulted in them not seeing
that she was toxic, yes."(emphasis added) Nonetheless, we believe the Murphys
have failed to present the necessary evidence that Dr. Lopez's "departure from such
generally recognized practices and procedures was the proximate cause of the
plaintiff's alleged injuries and damages." David, 367 S.C. at 248, 626 S.E.2d at 4.

The Murphys rely only on the expert testimony of Dr. Martin to establish
proximate cause. It is incumbent on the plaintiff in a medical malpractice claim to
establish proximate cause as well as the negligence of the physician, and if the
plaintiff relies solely upon the opinion of a medical expert to establish a causal
connection between the alleged negligence and the injury, the expert must state,
with reasonable certainty, that in his professional opinion the injuries complained
of most probably resulted from the defendant's negligence. Hoard v. Roper Hosp.,
Inc., 387 S.C. 539, 546, 694 S.E.2d 1, 5 (2010). "When expert testimony is the
only evidence of proximate cause relied upon, the testimony 'must provide a
significant causal link between the alleged negligence and the plaintiff's injuries,
rather than a tenuous and hypothetical connection.'" Id. at 546-47, 694 S.E.2d at 5
(quoting Ellis v. Oliver, 323 S.C. 121, 125, 473 S.E.2d 793, 795 (1996)).
Negligence may be deemed a proximate cause of injuries "only when without such
negligence the injury would not have occurred or could have been avoided." Id. at
547, 694 S.E.2d at 5. "[I]n determining whether particular evidence meets the
'most probably' test, it is not necessary that the testifying expert actually use the
words 'most probably.'" Martasin v. Hilton Head Health Sys., 364 S.C. 430, 438,
613 S.E.2d 795, 800 (Ct. App. 2005). Rather, "[i]t is sufficient that the testimony
is such as to judicially impress that the opinion . . . represents his professional
judgment as to the most likely one among the possible causes." Id. at 439, 613
S.E.2d at 800 (citation and quotation marks omitted).

Dr. Martin did not testify Tasha's damages "most probably" resulted from Dr.
Lopez's negligence. While Dr. Martin believed Tasha came to Palmetto
Behavioral Health, LLC, (Palmetto) with lithium in her system and more was
added, he acknowledged he did not know how Tasha developed lithium toxicity.
Though Dr. Martin testified the failure to perform the blood test "resulted in them
not seeing that [Tasha] was toxic," his testimony was not such as to "judicially
impress that the opinion . . . represent[ed] his professional judgment as to the most
likely one among the possible causes." While the failure to conduct a blood test
may have resulted in the medical providers not seeing that Tasha had become
toxic, there is no evidence or expert testimony showing when or how Tasha
became toxic, or that the administration of a blood test would have prevented her
toxicity or her damages. Indeed, Tasha could have conceivably been suffering
from lithium toxicity when she presented to Palmetto, and there is no evidence
linking the lack of the initial blood test to any damages the Murphys may have
subsequently suffered. Neither is there any evidence any other actions or inactions
on the part of Dr. Lopez proximately caused the Murphys' damages. Even though
it was not necessary that the words "most probably" be used, Dr. Martin's
testimony failed to "provide a significant causal link between the alleged
negligence and the plaintiff's injuries, rather than a tenuous and hypothetical
connection." Hoard, 387 S.C. at 546-47, 694 S.E.2d at 5. Accordingly, we find
the Murphys failed to present a scintilla of evidence on proximate cause.

Second, we find summary judgment was proper because the Murphys failed to
meet their burden of establishing any deviation from the standard of care by Dr.
Lopez which proximately resulted in the Murphys' damages. See Hollman, 384
S.C. at 579, 683 S.E.2d at 499 (noting a professional malpractice claim requires a
showing of the standard of care, a breach of the standard of care, proximate cause,
and damages). Undoubtedly, Dr. Martin testified in his deposition that Dr. Lopez,
specifically, "should have drawn a lithium level on admission," (emphasis added)
and the failure to draw a lithium level on admission was a violation of the standard
of care for a psychiatrist, and that was the only violation of the standard of care he
believed Dr. Lopez committed in this case. Dr. Martin again emphasized that
Tasha's lithium blood test "should have been drawn immediately," (emphasis
added) that an "original baseline was never checked," (emphasis added) and "that
would have been the standard of care of assessment and treatment." However, the
trial court found, and it is undisputed from the record before us, that Tasha was
admitted to Palmetto, not by Dr. Lopez, but by Dr. Jenkins, and it was Dr. Jenkins
who immediately ordered Tasha back on her previously prescribed dosage of
lithium. It was not until the next day that Dr. Lopez first became involved in
Tasha's treatment, at which time he concurred with Dr. Jenkins' diagnosis and
treatment recommendations. The Murphys contend they presented a scintilla of
evidence on the standard of care issue, pointing to evidence Dr. Lopez made the
decision to continue Tasha on the plan put in place by Dr. Jenkins even though Dr.
Lopez did not think Dr. Jenkins actually physically saw Tasha when she arrived at
Palmetto. They argue Dr. Lopez made the decision to continue giving lithium to
Tasha even though her levels had not been checked and she had not been
completely evaluated by a doctor until Dr. Lopez saw her, and Dr. Lopez should
have discontinued the lithium until an accurate baseline could be obtained.
However, there is no evidence in the record that continuing Tasha on the lithium
prescribed by the admitting physician or the failure of a subsequent treating
physician to order a baseline test for lithium constituted a breach of the standard of
care. Further, the Murphys' own expert testified the failure to draw a lithium level
on admission was the only violation of the standard of care, and he did not believe
it was negligent for any subsequent physicians not to order a baseline test.
Additionally, the uncontroverted testimony of Dr. Lopez's expert was that by the
time Dr. Lopez saw Tasha on the morning of November 20, 2002, she was already
on lithium, and drawing a blood level at that point "would be a clear mistake" as it
would produce a level no one would know how to interpret and would lead to
confusion in Tasha's care. Thus, while Dr. Martin's testimony established it was a
breach of standard of care for the medical providers to not "immediately" and "on
admission" obtain an "original baseline" of Tasha's lithium level, which would then
indicate whether Tasha already had lithium in her system, the only evidence in the
record before us shows Dr. Lopez was not Tasha's admitting physician, he did not
order that she be given lithium before a blood test could be drawn to show her
lithium level, and by the time Dr. Lopez saw Tasha, she was already administered
lithium pursuant to Dr. Jenkins' orders. Accordingly, there is not a scintilla of
evidence that Dr. Lopez breached the standard of care.1

1
We disagree with the Murphys' assertion that this court should not affirm the trial
court on the basis that they failed to meet their burden of proof regarding the
departure from standard of care. "The appellate court may affirm any ruling, order,
decision or judgment upon any ground(s) appearing in the Record on Appeal."
Rule 220(c), SCACR. Our courts have found, in spite of the fact that the trial court
may have erred in granting summary judgment on a particular basis, summary
judgment was properly granted upon other reasons appearing in the record
pursuant to Rule 220(c), SCACR. See Stinney v. Sumter Sch. Dist. 17, 391 S.C.
547, 550-51, 552, 707 S.E.2d 397, 398-99, 399 (2011) (holding, although the trial
court erred in granting summary judgment on the Stinneys' due process claim
based upon their failure to exhaust administrative remedies, the Stinneys were
provided due process, and therefore affirming the trial court's grant of summary
judgment pursuant to Rule 220(c), SCACR); Vaughan v. McLeod Reg'l Med. Ctr.,
372 S.C. 505, 510-11, 512, 642 S.E.2d 744, 747 (2007) (holding, although the
circuit court erred in applying statutory good faith immunity to grant summary
judgment, summary judgment should be affirmed based upon the ground of
common-law immunity, noting an appellate court may affirm for any reason
appearing in the record pursuant to Rule 220(c), SCACR). Further, though the trial
court did initially indicate in its verbal ruling following the hearing on the matter
that it believed there was a scintilla of evidence as to the departure from the
standard of care, the trial court did not specifically deny Dr. Lopez's motion for
summary judgment on this ground in his oral ruling. Additionally, the trial court's
written order granting summary judgment was not issued for over a month
following the hearing, during which time the court would have had a greater
opportunity to review the evidence submitted. "Until written and entered, the trial
judge retains discretion to change his mind and amend his oral ruling accordingly."
Ford v. State Ethics Comm'n, 344 S.C. 642, 646, 545 S.E.2d 821, 823 (2001).
"The written order is the trial judge's final order and as such constitutes the final
judgment of the court." Id. "Judgments in general . . . are not final until written
and entered." Doe v. Doe, 324 S.C. 492, 501, 478 S.E.2d 854, 859 (Ct. App.
1996). The trial court did not deny Dr. Lopez summary judgment on this basis.
We further note the trial court recognized in its written order that Dr. Jenkins was
the admitting physician, and it was Dr. Jenkins who immediately started Tasha
back on her previous lithium dosage.
2. The Murphys also assert error in the granting of summary judgment to Dr.
Lopez on their claim for punitive damages. However, as conceded by the
Murphys, affirmance of the trial court's grant of summary judgment on the
underlying claim precludes recovery of punitive damages. See McGee v. Bruce
Hosp. Sys., 344 S.C. 466 470, 545 S.E.2d 286, 288 (2001) ("The rule in South
Carolina is that there must be an award of actual or nominal damages for a verdict
of punitive damages to be supported. This rule is premised on the fact that liability
must be established before a plaintiff can seek punitive damages.").

For the foregoing reasons, the order of the trial court is

AFFIRMED.

HUFF, THOMAS, and PIEPER, JJ., concur.