THE STATE OF SOUTH CAROLINA In The Supreme Court

Amy Elizabeth Williams, as the Personal Representative

of the Estate for deceased minor; and Amy Elizabeth Williams, individually, Plaintiffs,

v.

Quest Diagnostics, Inc., At hena Diagnostics, Inc., and ADI Holdings, Inc., Defendants.

Appellate Case No. 2017-000787

CERTIFIED QUESTION

ON CERTIFICATION FROM THE UNITED STATES

DISTRICT COURT FOR THE D ISTRICT OF SOUTH CAROLINA Margaret B. Seymour, Senior United States District Judge

Opinion No. 27818 Heard February 14, 2018 – Filed June 27, 2018

CERTIFIED QUEST ION ANSWERED

Bradford W. Cranshaw, Tre vor M. Hughey, G. Robert DeLoach, III, Matthew M. McG uire, and James Ervin, all of Columbia, for Plaintiffs.

John C. Moylan, III, and Alice W. Parham Casey, both of Columbia, and Wallace K. Lightsey and Wade S. Kolb, III, both of Greenville, for Defendants.JUSTICE KITTREDGE: This Court accepted the fo llowing certified question

from the United States District Court for the District of South Carolina:

Is a federally licensed genetic t esting laboratory acting as a "licensed health care provider" as define d by S.C. Code Ann. § 38-79-410 when, at the request of a patient's treating physician, the lab oratory performs genetic testing to detect an existing disease or disor der?

Answer: Yes.

I.

This wrongful death action arises from the death of a minor. T he deceased was a young child experiencing seizures; the treating physician sent the child's DNA 1 to Defendants' genetic testing labo ratory for the purpose of diagn osing the child's disease or disorder. It is alleged the genetic testing laborat ory failed to properly determine the child's condition. The child died, and this acti on followed.

Defendants assert tha t the genetic testing laboratory is a "lic ensed health care provider" pursuant to S.C. Code Ann. § 38-79-410 (2015). Defen dants further

contend that Plaintiffs' claims concern medical malpractice, th ereby rendering the medical malpractice statut e of repose applicable. 2 See S.C. Code Ann. § 15-3-545

1 The common abbreviation for deoxyribonucleic acid.

2 Plaintiffs expressed concern that the question before us may b e premature and answering this certified questi on in the affirmative, as we do, may preclude other arguments in support of the ca se moving forward. We recognize this concern, but

we believe it has been satisf actorily addressed by Defendants' concession at oral argument that Plaintiffs' other arguments remain viable, unaffe cted by answering the certified question in the affirmative. See Dawkins v. Union Hosp. Dist. , 408

S.C. 171, 177–78, 758 S.E.2d 501, 504 (2014) (internal citation s omitted) ("[N]ot every injury sustained by a pa tient in a hospital [or by a lice nsed health care provider] results from medical m alpractice" and "if the patient instead receives 'nonmedical, administrative, min isterial, or routine care,' . . . the action instead sounds in ordinary negligence. . . . Thus, medical providers ar e still subject to claims sounding in ordinary neg ligence."). Therefore, we are m erely answering the narrow question certified by t he federal court. We leave t he determination of(2005). A determination of the n ature of Plaintiffs' claims (a nd the applicability of the medical malpractice statute of repose) is not before us, on ly the narrow question certified by the federal district court.

II.

As defined in section 38-79-410 , "'[l]icensed health care provi ders' means physicians and surgeons; director s, officers, and trustees of h ospitals; nurses; oral surgeons; dentists; pharmacists; chiropractors; optometrists; podiatrists; hospitals ; nursing homes; or any similar category of li censed health care providers ." (emphasis added). "Ou r primary function in interpreting a stat ute is to ascertain and give effect to the inten tion of the Legislature." Swanigan v. Am. Nat. Red

Cross , 313 S.C. 416, 419, 438 S. E.2d 251, 252 (1993) (citing Wright v. Colleton Cty. Sch. Dist. , 301 S.C. 282, 391 S.E. 2d 564 (1990)). "When the Legislature uses words of particular and specific meaning followed by general wo rds, the general

words are construed to embrace only persons or things of the sa me general kind or

class as those enumerated." Id. (citing State v. Patterson , 261 S.C. 362, 200 S.E.2d 68 (1973)).

Under this canon of statutory con struction, a genetic testing l aboratory that performs testing at the request of a patient's treating physici an for the purpose of assisting the treating physician in detecting an existing disease or disorder falls within the definition of "licensed health care providers." Und er these circumstances, the genetic testing laboratory is performing dia gnostic testing at the request of a treating physician for the purpose of diagnosis an d treatment, which is a core function of hospitals in diagnosing and treating patient s. See, e.g.

, S.C. Code Ann. § 15-79-110(4) (Supp. 2017) ("'Hospital' means a lice nsed facility with an organized medical staff to mai ntain and operate organized fa cilities and services to accommodate two or more nonrelated persons for the diagnosis , treatment, and care of such persons . . . ."); see also S.C. Code Ann. § 38-71 -1920(7), (11), (12) (2015) (providing the definition of a health care provider as " an institution providing health care services"—"for the diagnosis, prevention, treatment, cure, or relief of a health condition, illne ss, injury, or disease"—"inc luding, but not limited to, hospitals and

. . . diagnostic, laboratory , and imaging centers " (emphasis added)). Under the circumstances presented, the genetic testin g laboratory fits within the category provided by one of the specified designatio ns in section 38-79

- 410, a hospital. Thus, we conclude that a genetic testing labo ratory in these

whether the statute of repose a pplies to this case in the capab le hands of the United States District Judge.circumstances clearly falls with in section 38-79-410's catchall of "any similar category of licensed health care providers."

III.

We answer the certified question in the affirmative—a genetic t esting laboratory that performs genetic testing to detect an existing disease or disorder at the request of a patient's treating physicia n is acting as a "licensed heal th care provider" under

S.C. Code Ann. § 38-79-410.

CERTIFIED QUESTION ANSWERED.

BEATTY, C.J., FEW and JAMES, JJ., concur. HEARN, J., dissentin g in a separate opinion.JUSTICE HEARN: Because I view the role played by Quest Diagnostics to be distinguishable from the health care providers enumerated in section 38-79-410, I respectfully dissent. The key commonality 3 among the health care providers listed

in the statute is that all func tion to provide direct, face-to- face treatment to patients, who in their own right conscientiously select these providers and rely on their skill, expertise, and professional judg ment. These are individuals an d institutions who

make conclusive decisions about a patient's course of treatment . Although hospitals may contain in-house diagnostic l aboratories, I do not believe that fact standing alone is dispositive of whether Quest falls within a similar ca tegory of health care provider. It is the hospital at the institutional level, taken as the sum of its working parts, which is covered by the statute––not its individual components. While Quest may provide a medical service some times available at hospitals, the similarities end there. I do not believe the limited, specialized services offe red by Quest are

sufficient to render it similar to hospitals, which are holisti c enterprises offering a multitude of medical services and treatment options. Therefore, I would answer the certified question, "No."

3 Of course, the exception to this commonality are "directors, officers, and trustees of hospitals," but their role is sufficiently different from that of a third party diagnostic lab such that their inclusion does not render Quest a "similar category" of licensed health care provider. W hen one considers agency princ iples, it becomes clear why the General Assembly would include these individuals in the definition of a licensed health care provider in order to offer increased pro tections in light of the myriad litigation facing hospitals.