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THE STATE OF SOUTH CAROLINA
In The Supreme Court
________
Jennifer M. Tatum and Billy Joe Scarbrough,
Respondents,
v.
Medical University of South Carolina,
Petitioner.
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ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
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Appeal From Charleston County
A. Victor Rawl, Circuit Court Judge
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Opinion No. 25345
Heard June 8, 2000 - Filed August 20, 2001
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REVERSED
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Robert H. Hood, Barbara W. Showers, and P. Gunner Nistad, of Hood Law Firm, LLC, of Charleston, for petitioner.
Donald E. Jonas, of Cotty & Jonas, of Columbia, for respondents.
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JUSTICE BURNETT: This
Court granted a writ of certiorari to review Tatum
v. Medical University of South Carolina, 335 S.C. 499, 511, 517 S.E.2d
706, 713 (Ct. App. 1999), in which the Court of Appeals adopted the "dual
persona doctrine" and held "where [an] employer-hospital and its
physicians negligently treat an employee for a work-related accident and, in
doing so, exacerbate the injury," a tort action may be maintained by the
employee against the employer-hospital. We reverse.
Respondent Tatum (Mrs. Tatum) injured her back in the course of her employment with Petitioner Medical University of South Carolina (MUSC). She was treated at MUSC's Employee Health Care Service and diagnosed with a midline broadly-based disc herniation.
Mrs. Tatum was later referred to Dr. Sunil J. Patel, a physician employed by MUSC as an assistant professor and neurosurgeon. Ultimately, Dr. Patel performed three surgeries on Mrs. Tatum's back.
Mrs. Tatum filed a medical malpractice action against MUSC alleging she suffered permanent damage to her spinal cord as a result of Dr. Patel's negligence. Her husband, Respondent Scarbrough, asserted a claim for loss of consortium. MUSC denied the allegations in Mrs. Tatum's complaint and claimed Mrs. Tatum's exclusive remedy was under the Workers' Compensation Act.
Finding workers' compensation was Mrs. Tatum's exclusive remedy, the trial court granted MUSC's motion to dismiss under Rule 12(b)(6), SCRCP. Mrs. Tatum appealed.
The Court of Appeals reversed. It reasoned 1) an employee injured within the scope of employment may maintain a malpractice action against a negligent treating physician; 2) the South Carolina Tort Claims Act prohibits Mrs. Tatum from maintaining a malpractice action against Dr. Patel because he is MUSC's employee 3) the provisions of the South Carolina Workers' Compensation Act preclude her from maintaining a tort action against her employer MUSC; 4) nonetheless, pursuant to the "dual persona" doctrine, Mrs. Tatum may maintain a malpractice action against MUSC, not as her employer, but as a provider of hospital services. Tatum, 335 S.C. 499, 517 S.E.2d 706.
Did the Court of Appeals err by holding an employee of a governmental entity/hospital who sustains a compensable work-related injury may maintain a tort action against the governmental entity/hospital for the negligence of the treating physician? (1)
This case asks us to resolve the conflict, if any, between the South Carolina Tort Claims Act (the Tort Claims Act) (2) and the South Carolina Workers' Compensation Act (the Worker's Compensation Act). (3)
Under the Tort Claims Act, "[t]he State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained [in the Act]." § 15-78-40. The Tort Claims Act does not create causes of action. Rather, it removes the common law bar of sovereign immunity in certain circumstances, but only to the extent permitted by the Act itself. Summers v. Harrison Constr., 298 S.C. 451, 381 S.E.2d 493 (Ct. App. 1989). The Tort Claims Act specifically provides: "[t]he governmental entity is not liable for a loss resulting from any claim covered by the South Carolina Workers' Compensation Act, except claims by or on behalf of an injured employee to recover damages from any person other than the employer. . .". § 15-78-60 (14).
Pursuant to the Tort Claims Act, an employee of a governmental entity who commits a tort while acting within the scope of his official duty is generally immune from suit. § 15-78-70 (a) and (b). Instead, a person seeking to file a tort claim against a governmental entity must "name as a party defendant only the agency or political subdivision for which the employee was acting." § 15-78-70(c).
MUSC is a governmental agency subject to the provisions of the Tort Claims Act. Proveaux v. Medical University of South Carolina, 326 S.C. 28, 482 S.E.2d 774 (1997). Accordingly, a physician-employee of MUSC is immune from suit for alleged negligence committed in the course of employment. Id. A tort action against a physician-employee of MUSC must be maintained against MUSC.
The Workers' Compensation Act provides:
The rights and remedies granted by this Title to an employee when he and his employer have accepted the provisions of this Title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.
S.C. Code Ann. § 42-1-540 (emphasis added).
The Workers' Compensation Act further provides:
. . . [T]he employer shall not be liable in damages for malpractice by a physician or surgeon furnished by him pursuant to the provisions of this section, but the consequences of any such malpractice shall be deemed part of the injury resulting from the accident and shall be compensated for as such.
Section 42-15-70.
The Court of Appeals asserted the purpose of § 42-15-70 "was simply to insulate the employer from liability for a treating physician's negligence merely because the employer exercised control in choosing the physician." (4) Tatum