THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Phillippa Smalling, individually and as Next Friend for 

Jahmerican M., a minor, Appellant, 

v. 

Lisa R. Maselli, M.D., both individually and as 

agent/employee of Carolina OB-GYN, Respondent. 

Appellate Case No. 2019-001304 

Appeal From Georgetown County 

Larry B. Hyman, Jr., Circuit Court Judge 

Opinion No. 5949 

Heard October 3, 2022 – Filed November 2, 2022 

AFFIRMED 

Edward L. Graham, of Graham Law Firm, PA, of 

Pendleton, for Appellant. 

James Bernard Hood and John O'Connor Radeck, Jr., of 

Hood Law Firm, LLC, of Charleston, and Deborah 

Harrison Sheffield, of Hood Law Firm, LLC, of 

Columbia, all for Respondent. 

MCDONALD, J.: Phillippa Smalling, individually and as Next Friend for 

Jahmerican M., a minor, brought this medical malpractice action against Dr. Lisa 

Maselli for injuries suffered by Minor during his birth. Smalling challenges the 

circuit court's application of section 15-32-230 of the South Carolina Code (Supp. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2022), which requires gross negligence to impose liability in certain emergency 

and obstetrical care situations. We affirm. 

Facts and Procedural History 

In 2012, Smalling (Mother) received prenatal care at Carolina OB-GYN. 

Following an uncomplicated pregnancy, Mother was admitted to Georgetown 

Memorial Hospital for labor and delivery at 2:00 a.m. on April 27, 2013. 

Mother reached ten centimeters dilation at 7:59 a.m. and began pushing.1 At 8:14 

a.m., Minor's head delivered with a nuchal cord.

2 Although Dr. Maselli was able 

to reduce the cord, she immediately realized Minor's top shoulder was stuck under 

Mother's pubic bone, signaling shoulder dystocia, an obstetric emergency.3 Dr. 

Maselli called for a second labor and delivery nurse to assist, and the nurses 

performed a McRoberts maneuver by hyperflexing Mother's hips. When the next 

push did not resolve the shoulder dystocia, Dr. Maselli performed a mediolateral 

episiotomy. While the nurses applied suprapubic pressure, Dr. Maselli used 

"moderate/controlled" traction to successfully release the shoulder and complete 

Minor's delivery. 

Due to the relatively quick delivery—sixty seconds elapsed from the delivery of 

the baby's head to the delivery of the body—Minor suffered no hypoxic injury 

from oxygen deprivation. However, Minor did suffer a brachial plexus injury. Dr. 

Maselli's "shoulder dystocia progress note" referenced minimal movement of 

Minor's right arm but noted the baby's right hand and fingers were moving. A 

subsequent MRI revealed Minor's C-5 and C-6 nerve roots were completely 

avulsed from his spinal cord, and his C-7 nerve root was partially avulsed. 

Although Minor underwent multiple surgeries and extensive rehabilitative therapy, 

1 Dr. Maselli and a labor and delivery nurse were in the delivery room with Mother 

at this stage. Pediatrician David Haseltine joined them to provide deep suction 

once Minor was delivered due to the presence of meconium in the amniotic fluid. 

2 A "nuchal cord" refers to a condition in which the umbilical cord is wrapped 

around the baby's neck. In this context, "reduce" means to release the umbilical 

cord over the baby's head. 

3 Mother's expert, Dr. Stephen Pliskow testified, "With shoulder dystocia, the head 

comes out and the baby gets stuck. The shoulders, which is the next part to come 

out after the head, doesn't come out; it's stuck by the bony structures of the pelvis." 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

he has permanent and significant loss of right arm function, and his right arm is 

shorter than his left due to muscle atrophy. 

In response to Mother's medical malpractice complaint, Dr. Maselli raised section 

15-32-230's limitation on liability, which requires a showing of gross negligence. 

Mother later moved for partial summary judgment seeking to preclude the 

defensive application of § 15-32-230(A), which pertains to claims arising from 

"care rendered in a genuine emergency situation involving an immediate threat of 

death or serious bodily injury to the patient receiving care in an emergency 

department or in an obstetrical or surgical suite." The circuit court denied Mother's 

motion for partial summary judgment and accompanying motion to stay. 

At the close of Mother's case at trial, Dr. Maselli moved for a directed verdict. The 

circuit court denied the motion as to liability but directed a verdict on punitive 

damages. Dr. Maselli renewed the directed verdict motion as to liability at the 

close of her case. Mother also sought a partial directed verdict, again seeking to 

preclude the application of § 15-32-230(A). The circuit court denied the motions. 

The circuit court's jury charges included the relevant language of § 15-23-230 and 

a standard medical malpractice hindsight charge. The circuit court denied Mother's 

request to charge the language of § 15-23-230(B), which addresses claims relating 

to "obstetrical care rendered by a physician on an emergency basis when there is 

no previous doctor/patient relationship . . . or the patient has not received prenatal 

care," finding this subsection inapplicable to the circumstances of Minor's delivery. 

Without objection, the circuit court submitted a verdict form with special 

interrogatories addressing the required elements of § 15-23-230(C). Although the 

jury was unable to reach a unanimous verdict as to the first two questions on the 

verdict form, it was unanimous as to the remaining questions and sought to return a 

verdict for Dr. Maselli on that basis. Over Mother's objection, the circuit court 

accepted the defense verdict. 

Standard of Review 

"When reviewing a motion for directed verdict or JNOV, an appellate court must 

employ the same standard as the trial court." Byrd as Next Friend of Julia B. v. 

McLeod Physician Assocs. II, 427 S.C. 407, 412–13, 831 S.E.2d 152, 154 (Ct. 

App. 2019) (quoting Wright v. Craft, 372 S.C.1, 18, 640 S.E.2d 486, 495 (Ct. App. 

2006)). "[W]e reverse only when there is no evidence to support the ruling or 

when the ruling is governed by an error of law.'" Austin v. Stokes-Craven Holding 

Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010)). "Statutory interpretation is a 
 

 

 

 

 

 

 

question of law," which this court reviews de novo. Flowers v. Giep, 436 S.C. 

281, 285–86, 871 S.E.2d 607 (Ct. App. 2021), cert. denied (Sept. 7, 2022). 

Law and Analysis 

I. Directed Verdict and Applicability of Subsections (A) and (B) 

Mother argues the circuit court erred in denying her motion for a partial directed 

verdict, which essentially sought a declaration that section 15-32-230(A)'s gross 

negligence standard was inapplicable to the circumstances of Minor's delivery. In 

furtherance of this argument, Mother asserts the General Assembly intended for 

subsections (A) and (B) to apply together. We disagree. 

Section 15-32-230 provides: 

(A) In an action involving a medical malpractice claim 

arising out of care rendered in a genuine emergency 

situation involving an immediate threat of death or 

serious bodily injury to the patient receiving care in an 

emergency department or in an obstetrical or surgical 

suite, no physician may be held liable unless it is proven 

that the physician was grossly negligent. 

(B) In an action involving a medical malpractice claim 

arising out of obstetrical care rendered by a physician on 

an emergency basis when there is no previous 

doctor/patient relationship between the physician or a 

member of his practice with a patient or the patient has 

not received prenatal care, such physician is not liable 

unless it is proven such physician is grossly negligent. 

(C) The limitation on physician liability established by 

subsections (A) and (B) shall only apply if the patient is 

not medically stable and: 

(1) in immediate threat of death; or 

(2) in immediate threat of serious bodily injury. 

Further, the limitation on physician liability 

established by subsections (A) and (B) shall only 
 

 

 

 

 

 

 

 

 

 

 

 

 

apply to care rendered prior to the patient's 

discharge from the emergency department or 

obstetrical or surgical suite. 

This court addressed subsections (A) and (B) in Flowers, finding "section 

15-32-230 provides a defense against simple negligence in two separate and 

distinct scenarios." 436 S.C. at 288, 871 S.E.2d at 608. 

From a plain reading of the text, we find subsection (A) 

describes a physician that encounters an emergency while 

providing care whereas subsection (B) describes a 

physician treating a patient previously unassociated with 

the physician or his or her practice or lacking prior 

prenatal care. Because subsections (A) and (B) describe 

different factual scenarios in which a physician might 

provide negligent care, we find the legislature intended 

subsection (B) to apply separately from subsection (A) 

rather than as a limitation to (A). Moreover, the 

language within subsection (B) neither indicates that it is 

a limitation on the defense provided in subsection (A) nor 

does it state that subsection (A) only provides a defense 

for obstetrical care if the requirements within subsection 

(B) are satisfied. To adopt Appellants' interpretation and 

read subsection (B) as a limitation to subsection (A) 

would be a "forced construction" of the text's plain 

language. 

Id. at 287–88, 871 S.E.2d at 607–08 (internal citations omitted). 

In an effort to avoid subsection (A)'s limitation on liability, Mother seeks to create 

an ambiguity through her reading of subsection (B). Although Mother also seeks 

to limit the application of Flowers to the particular facts of that case, we find its 

analysis applicable here as well. Subsection (B) is inapplicable to Mother's 

circumstances because Mother was an established patient of Carolina OB-GYN, 

where she received prenatal care. Accordingly, the circuit court properly denied 

Mother's motion for a partial directed verdict and properly declined her request to 

declare the gross negligence standard of § 15-32-230(A) inapplicable. 

II. Section 15-32-230(C) 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mother further argues the "emergency statute does not apply because, as a matter 

of law, there was no proof that this infant was 'not medically stable.'" In her reply 

brief, Mother clarifies this argument, contending that when certain undefined 

statutory terms are "properly construed, the statute does not apply as a matter of 

law." Mother correctly notes that for the emergency statute to apply, a physician 

"must prove all of the three required elements: (1) the claim arises out of a genuine 

emergency situation, (2) the patient is not medically stable, and (3) the patient was 

under an immediate threat of death or serious bodily injury." Byrd, 427 S.C. at 

414, 831 S.E.2d at 155. 

A. Genuine Emergency and Immediate Threat 

Mother contends the phrases "genuine emergency," "medically stable," and 

"immediate threat of death or serious bodily injury," are "ambiguous, in part, and 

must be construed to signify some factor other than conditions present in any 

medical emergency." However, because Mother raised only the element of 

medical instability in her argument on the record at trial, we find unpreserved her 

contentions that Minor's delivery did not involve a "genuine emergency" or an 

"immediate threat of death or serious bodily injury." See Staubes v. City of Folly 

Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("It is well-settled that an 

issue cannot be raised for the first time on appeal, but must have been raised to and 

ruled upon by the trial court to be preserved for appellate review."); State v. 

Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("A party may not argue 

one ground at trial and an alternate ground on appeal."). 

B. Not Medically Stable 

Mother asserts Dr. Maselli's experts "provided no evidence whatsoever that this 

patient, in that moment, was medically unstable in a statutory sense." She relies on 

data collected from the fetal heart monitoring strips, Minor's Apgar scores,

4 and the 

non-problematic cord blood gases to support her medical stability argument, noting 

these test results indicated no immediate threat of death or serious bodily harm to 

Mother or Minor. Citing this data, Mother's experts, Dr. Adler and Dr. Pliskow, 

opined Mother and Minor were medically stable and there was no risk of injury 

during the sixty seconds it took Dr. Maselli to resolve the shoulder dystocia. 

Specifically, Dr. Pilskow testified that "more likely than not, the baby was stable 

4 "Apgar scores are given to the baby after delivery based on the baby's color, 

breathing, tone, movement, respiratory rate, and heart rate." Byrd, 427 S.C. at 414 

n.2, 831 S.E.2d at 155 n.2. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

coming in and stable coming out, would have been stable for at [sic] that 

one-minute period of time from [an] oxygen, acid based standpoint." 

By contrast, Dr. Maselli's experts, Dr. Christopher Robinson and Dr. Suneet 

Chauhan, opined Minor was not medically stable and the risk posed by the 

shoulder dystocia was real and immediate. As Dr. Robinson explained, "You 

cannot be stable and not be able to breathe." He further noted the Apgar scores and 

cord blood gases demonstrated Dr. Maselli did a good job managing the delivery in 

preventing hypoxic injury or death, but such tests have no bearing on whether 

Minor was medically stable during the period of time his shoulder was stuck. Dr. 

Chauhan echoed this opinion, testifying, "to me this is a testament of their 

excellent clinical work in managing obstetrics." 

As in Byrd, the experts here agreed the data from the fetal heart monitoring strips, 

Apgar scores, and cord blood gases indicated stability. 427 S.C. at 416, 831 S.E.2d 

at 156 (noting "the experts seem to agree the data from the fetal heart monitoring 

strips, Apgar scores, and cord blood gases indicated stability" but "medical 

stability is not based on this information alone."). However, Dr. Maselli's experts 

testified shoulder dystocia is a medically unstable situation because if the baby is 

not timely delivered, lack of oxygen can lead to brain injury or even death. See id. 

("Respondents' experts view shoulder dystocia as a medically unstable situation 

because if the baby is not delivered, lack of oxygen [can] lead to a brain injury or 

death."). While Mother disagrees, these opinions provided a basis from which the 

jury could properly determine the necessary elements of § 15-32-230 were met. 

Thus, we find the circuit court properly considered the evidence at trial in 

conjunction with the requirements of the statute in submitting the case to the jury. 

See id. ("We must uphold the trial court's denial of Byrd's motion for a new trial 

absolute and or judgment notwithstanding the verdict if we find any evidence in 

the record purporting to satisfy these two remaining elements."). 

Conclusion 

For the foregoing reasons, the orders of the circuit court are 

AFFIRMED. 

GEATHERS and HILL JJ., concur.