The Supreme Court of South Carolina 

Vicki L. Wilkinson, Appellant, 

v. 

East Cooper Community Hospital, Inc., d/b/a East 

Cooper Regional Medical Center, Carolina Plastic 

Surgery Institute, PA, and Thomas X. Hahm, M.D., 

Respondents. 

Appellate Case No. 2012-213464 

ORDER 

The petitions for rehearing are denied. This Court does, however, substitute the 

attached amended majority opinion for the majority opinion previously filed in this 

matter. The amended opinion deletes the last sentence of the second paragraph on 

page nine of the original majority opinion. 

s/Jean H. Toal C.J. 

s/Donald W. Beatty J. 

s/John Kittredge J. 

s/Kaye G. Hearn J. 

I would grant the petitions for rehearing. 

s/Costa M. Pleicones J. 

Columbia, South Carolina 

October 3, 2014 
THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Vicki L. Wilkinson, Appellant, 

v. 

East Cooper Community Hospital, Inc., d/b/a East 

Cooper Regional Medical Center, Carolina Plastic 

Surgery Institute, P.A., and Thomas X. Hahm, M.D., 

Respondents. 

Appellate Case No. 2012-213464 

Appeal From Charleston County 

R. Markley Dennis, Jr., Circuit Court Judge 

Opinion No. 27423 

Heard May 20, 2014 – Refiled October 3, 2014 

 REVERSED AND REMANDED 

John S. Nichols, of Bluestein Nichols Thompson & Delgado, L.L.C., 

of Columbia, and Daniel Nathan Hughey, of Hughey Law Firm, 

L.L.C., of Mt. Pleasant, for Appellant. 

Robert H. Hood, James Bernard Hood, Harry Cooper Wilson, III, and 

Deborah Harrison Sheffield, all of Hood Law Firm, L.L.C., of 

Charleston; Daniel Simmons McQueeney, Jr., Kathleen Fowler 

Monoc, and Lindsay Kathryn Smith-Yancey, all of Pratt-Thomas 

Walker, P.A., of Charleston, for Respondents. 

Andrew A. Mathias, of Nexsen Pruet, L.L.C., of Greenville, for 

Amicus Curiae, South Carolina Hospital Association. 
 

 

JUSTICE BEATTY: In this medical malpractice case, Vicki Wilkinson 

appeals the circuit court's order dismissing her civil action with prejudice based on 

the motions filed by East Cooper Community Hospital, Inc. ("East Cooper"), 

Carolina Aesthetic Plastic Surgery Institute, P.A. ("Carolina Aesthetic Plastic 

Surgery"), and Dr. Thomas Hahm (collectively "Respondents"). Wilkinson asserts 

the court erred in finding: (1) the statute of limitations was not tolled because she 

failed to file an expert witness affidavit contemporaneously with her Notice of 

Intent to File Suit ("NOI") pursuant to section 15-79-125 of the South Carolina 

Code;1

 and (2) she failed to file her Complaint within the applicable statute of 

limitations given she did not contemporaneously file an expert witness affidavit 

with the Complaint or within forty-five days thereafter in accordance with section 

15-36-100(C).2 

1 Section 15-79-125 provides, in part, as follows: 

Prior to filing or initiating a civil action alleging injury or death 

as a result of medical malpractice, the plaintiff shall 

contemporaneously file a Notice of Intent to File Suit and an affidavit 

of an expert witness, subject to the affidavit requirements established 

in Section 15-36-100, in a county in which venue would be proper for 

filing or initiating the civil action. . . . Filing the Notice of Intent to 

File Suit tolls all applicable statutes of limitations. 

S.C. Code Ann. § 15-79-125(A) (Supp. 2013) (emphasis added). 

2

 Section 15-36-100 provides in relevant part: 

(B) Except as provided in Section 15-79-125, in an action for damages 

alleging professional negligence against a professional licensed by or 

registered with the State of South Carolina and listed in subsection 

(G) or against any licensed health care facility alleged to be liable 

based upon the action or inaction of a health care professional 

licensed by the State of South Carolina and listed in subsection (G), 

the plaintiff must file as part of the complaint an affidavit of an expert 

witness which must specify at least one negligent act or omission 

claimed to exist and the factual basis for each claim based on the 

available evidence at the time of the filing of the affidavit. 
 

This appeal requires the Court to review the decision of the Court of Appeals 

in Ranucci v. Crain, 397 S.C. 168, 723 S.E.2d 242 (Ct. App. 2012) ("Ranucci I"), 

which held the pre-litigation filing requirement for a medical malpractice case 

found in section 15-79-125 incorporates only the parts of section 15-36-100 that 

relate to the preparation and content of an expert's affidavit. Recently, we reversed 

Ranucci I, holding that section 15-79-125(A) incorporates section 15-36-100 in its 

entirety. Ranucci v. Crain, Op. No. 27422 (S.C. Sup. Ct. filed July 23, 2014) 

("Ranucci II"). Therefore, we hold that Wilkinson could invoke section 15-36-

(C)(1) The contemporaneous filing requirement of subsection (B) does 

not apply to any case in which the period of limitation will expire, or 

there is a good faith basis to believe it will expire on a claim stated in 

the complaint, within ten days of the date of filing and, because of the 

time constraints, the plaintiff alleges that an affidavit of an expert 

could not be prepared. In such a case, the plaintiff has forty-five days 

after the filing of the complaint to supplement the pleadings with the 

affidavit. 

. . . . 

(D) This section does not extend an applicable period of limitation, 

except that, if the affidavit is filed within the period specified in this 

section, the filing of the affidavit after the expiration of the statute of 

limitations is considered timely and provides no basis for a statute of 

limitations defense. 

. . . . 

(F) If a plaintiff fails to file an affidavit as required by this section, 

and the defendant raises the failure to file an affidavit by motion to 

dismiss filed contemporaneously with its initial responsive pleading, 

the complaint is not subject to renewal after the expiration of the 

applicable period of limitation unless a court determines that the 

plaintiff had the requisite affidavit within the time required pursuant 

to this section and the failure to file the affidavit is the result of a 

mistake. The filing of a motion to dismiss pursuant to this section 

shall alter the period for filing an answer to the complaint in 

accordance with Rule 12(a), South Carolina Rules of Civil Procedure. 

S.C. Code Ann. § 15-36-100(B), (C)(1), (D), (F) (Supp. 2013) (emphasis added). 
 

 

 

100(C)(1), which extended the time for filing the expert witness affidavit with her 

NOI and tolled the applicable statute of limitations. However, because the analysis 

in Ranucci II was confined to the dismissal of the pre-litigation NOI, it is not 

dispositive since the instant case involves the next procedural step in medical 

malpractice litigation. Specifically, we must analyze whether Wilkinson's failure 

to file an expert witness affidavit with her Complaint warranted the dismissal of 

her civil action. We hold the circuit court erred in dismissing Wilkinson's civil 

action as the expert affidavit filed with the NOI satisfied the statutory requirements 

of section 15-36-100 and, thus, it was not necessary to file a second expert 

affidavit in the same civil action. Accordingly, we reverse the circuit court's order 

and remand the case for further proceedings. 

I. Factual / Procedural History 

On September 4, 2008, Wilkinson was admitted to East Cooper to undergo 

reconstructive breast surgery performed by Dr. Hahm. Following the surgery, 

Wilkinson experienced complications throughout 2008 that required additional 

medical procedures. 

On September 1, 2011, Wilkinson filed an NOI pursuant to section 15-79-

125 against Respondents and several other defendants, which was designated as 

Case No. 2011-CP-10-6306.3

 Because the statute of limitations was due to expire 

within a short period of time, Wilkinson did not include an expert witness affidavit 

with the NOI, but stated that she would file one at a later date. On October 5, 

2011, Wilkinson filed the affidavit of Dr. John D. Newkirk, a board certified 

plastic surgeon. 

On January 25, 2012, five days after an unsuccessful attempt at pre-litigation 

mediation, Wilkinson filed a Complaint against the defendants named in the NOI, 

which was designated as Case No. 2012-CP-10-0558. Wilkinson did not file an 

expert affidavit with the Complaint nor did she reference the NOI or otherwise 

explain why she did not file an expert affidavit with the Complaint. 

3

 In addition to Respondents, Wilkinson named Tenet Healthcare Corp. ("THC") 

and Tenet Healthsystem Medical, Inc. ("THMI") as defendants. On April 18, 

2012, Wilkinson entered into a consent order with THC and THMI to dismiss the 

case as to them without prejudice. Thus, THC and THMI are not parties to this 

appeal. 
 

 

Respondents separately answered and moved to dismiss pursuant to Rule 

12(b)(6) of the South Carolina Rules of Civil Procedure on the ground the statute 

of limitations had expired. Citing Ranucci I, East Cooper asserted the NOI did not 

toll the three-year statute of limitations4

 because Wilkinson failed to 

contemporaneously file an expert affidavit with the NOI pursuant to section 15-79-

125. Therefore, East Cooper argued that Wilkinson's Complaint, which was filed 

four months after the expiration of the statute of limitations, should be dismissed. 

Alternatively, even if the statute of limitations did not expire on September 4, 

2011, East Cooper claimed Wilkinson's failure to file an expert affidavit with her 

Complaint or within forty-five days thereafter violated section 15-36-100 and 

warranted dismissal. In a separate memorandum in support of their motion to 

dismiss, Respondents Carolina Aesthetic Plastic Surgery and Dr. Hahm reiterated 

the arguments raised by East Cooper. 

Wilkinson filed a memorandum in opposition to Respondents' motions. 

Because Respondents engaged in pre-litigation mediation and did not move to 

dismiss the NOI during the pre-litigation proceedings, Wilkinson maintained 

Respondents waived any argument regarding her NOI and the expiration of the 

statute of limitations. Additionally, Wilkinson asserted the failure to file an expert 

affidavit with her Complaint did not warrant dismissal as Respondents were 

already in possession of the previously filed affidavit of Dr. Newkirk. 

After a hearing, the circuit court granted Respondents' motions to dismiss 

with prejudice. Based on Ranucci I, the court found that Wilkinson: (1) failed to 

file an expert affidavit contemporaneously with her NOI as required by section 15-

79-125 and, thus, the statute of limitations was not tolled; and (2) failed to file an 

expert affidavit contemporaneously with her Complaint or within forty-five days 

thereafter as required by section 15-36-100. The court rejected Wilkinson's 

contention that Respondents' participation in statutorily mandated pre-litigation 

mediation waived their right to challenge the NOI. The court also found the 

exception codified in section 15-36-100(C)(1), which extends the time for filing an 

expert affidavit with the Complaint, was inapplicable because Wilkinson did not 

provide any explanation as to why the expert affidavit was not filed and, in any 

4 See S.C. Code Ann. § 15-3-545(A) (2005) (providing that a medical malpractice 

case "must be commenced within three years from the date of the treatment, 

omission, or operation giving rise to the cause of action or three years from date of 

discovery or when it reasonably ought to have been discovered, not to exceed six 

years from date of occurrence, or as tolled by this section"). 
 

event, failed to file an expert affidavit within forty-five days of filing her 

Complaint. 

Following the circuit court's denial of her motion for reconsideration, 

Wilkinson appealed to the Court of Appeals. This Court granted Wilkinson's 

motion to certify the appeal pursuant to Rule 204(b) of the South Carolina 

Appellate Court Rules. 

II. Standard of Review 

"On appeal from the dismissal of a case pursuant to Rule 12(b)(6), an 

appellate court applies the same standard of review as the trial court." Rydde v. 

Morris, 381 S.C. 643, 646, 675 S.E.2d 431, 433 (2009). "That standard requires 

the Court to construe the complaint in a light most favorable to the nonmovant and 

determine if the facts alleged and the inferences reasonably deducible from the 

pleadings would entitle the plaintiff to relief on any theory of the case." Id. 

(internal quotations omitted). The Court may sustain the dismissal when "the facts 

alleged in the complaint do not support relief under any theory of law." Flateau v. 

Harrelson, 355 S.C. 197, 202, 584 S.E.2d 413, 416 (Ct. App. 2003). 

III. Discussion 

A. Arguments 

Initially, Wilkinson challenges the propriety of Ranucci I and urges this 

Court to reverse the decision of the Court of Appeals.5 If the Court reverses 

Ranucci I, Wilkinson claims her NOI tolled the statute of limitations and, 

therefore, neither the NOI nor the Complaint should have been dismissed as 

untimely. However, even if her Complaint is deemed deficient based on her failure 

to contemporaneously file an expert affidavit, she contends any deficiency did not 

mandate dismissal. Rather, she asserts any dismissal under section 15-36-

100(C)(1) is permissive given the statute states that a plaintiff's Complaint is 

"subject to dismissal for failure to state a claim." (Emphasis added.) Because 

dismissal is not statutorily mandated, Wilkinson claims the appropriate remedy 

5

 East Cooper asserts Wilkinson failed to preserve this issue for appellate review 

because she did not raise it to the circuit court. This assertion is without merit. 

Because the circuit court was bound to follow Ranucci I, it would have been futile 

for Wilkinson to challenge the propriety of Ranucci I as the circuit court had no 

authority to alter the decision of the Court of Appeals. 
 

 

 

 

 

would be for her to be given an opportunity to cure any defect as the Court 

permitted a plaintiff to file an amended Complaint after the expiration of the statute 

of limitations in Spence v. Spence, 368 S.C. 106, 628 S.E.2d 869 (2006).6 

Alternatively, Wilkinson maintains her Complaint was not deficient as it 

stated facts sufficient to support a cause of action and Respondents were already in 

possession of the expert affidavit that was filed with the NOI. Thus, because 

Respondents were not prejudiced by the alleged deficiency, Wilkinson claims 

dismissal was not the appropriate sanction. 

B. Application of Ranucci II as to the Sufficiency of the NOI 

Recently, this Court reversed Ranucci I. Ranucci v. Crain, Op. No. 27422 

(S.C. Sup. Ct. filed July 23, 2014) ("Ranucci II"). In so ruling, we held that section 

15-79-125(A) incorporates section 15-36-100 in its entirety. Thus, we ruled that a 

medical malpractice claimant may invoke section 15-36-100(C)(1), which permits 

the claimant to file an expert witness affidavit within forty-five days after filing the 

NOI. Id. 

6

 In support of this proposition, Wilkinson relies on Spence, wherein this Court 

found that when a Complaint is dismissed under Rule 12(b)(6), "the dismissal 

generally is without prejudice" and "[t]he plaintiff in most cases should be given an 

opportunity to file and serve an amended complaint." Spence, 368 S.C. at 129, 628 

S.E.2d at 881. The Court explained: 

When a plaintiff is not given the opportunity to file and serve 

an amended complaint, but is left with no choice but to appeal after 

dismissal of her case with prejudice, an appellate court which affirms 

the dismissal may modify the lower court's order to find the dismissal 

is without prejudice. When the statute of limitations has expired, the 

appellate court may in its discretion impose a reasonable period of 

time in which to amend the complaint. An appellate court should 

follow this procedure when the plaintiff presents additional factual 

allegations or a different theory of recovery which, taken as true in a 

well-pleaded complaint, may state a claim upon which relief may be 

granted. 

Id. at 130, 628 S.E.2d at 881-82 (emphasis added). 
In the instant case, Wilkinson filed the NOI on September 1, 2011 in 

compliance with section 15-79-125(A). S.C. Code Ann. § 15-79-125(A) (Supp. 

2013). Because the statute of limitations was due to expire within a short period of 

time, Wilkinson did not include an expert witness affidavit with the NOI, but stated 

that she would file one at a later date. Pursuant to section 15-36-100(C)(1), 

Wilkinson had an additional forty-five days to supplement her NOI with an expert 

affidavit. Id. § 15-36-100(C)(1). Wilkinson acted within the statutorily designated 

time period as she filed the affidavit of Dr. Newkirk on October 5, 2011. As a 

result, Wilkinson's properly filed NOI tolled "all applicable statutes of limitations" 

pursuant to section 15-79-125(A). Accordingly, the circuit court erred in finding 

that Wilkinson's NOI was not sufficient to toll the statute of limitations. 

After the NOI was properly filed, the parties strictly adhered to the prelitigation procedures outlined in section 15-79-125. Specifically, the parties 

engaged in discovery and participated in mediation within the statutorily mandated 

120-day time period. Id. § 15-79-125(B) ("After the Notice of Intent to File Suit is 

filed and served, all named parties may subpoena medical records and other 

documents potentially related to the medical malpractice claim pursuant to the 

rules governing the service and enforcement of subpoenas outlined in the South 

Carolina Rules of Civil Procedure. Upon leave of court, the named parties also 

may take depositions pursuant to the rules governing discovery outlined in the 

South Carolina Rules of Civil Procedure."); id. § 15-79-125(C) ("Within ninety 

days and no later than one hundred twenty days from the service of the Notice of 

Intent to File Suit, the parties shall participate in a mediation conference unless an 

extension for no more than sixty days is granted by the court based upon a finding 

of good cause."). 

Following the failed mediation attempt on January 20, 2012, Wilkinson 

initiated her civil action by filing a timely summons and complaint on January 25, 

2012, as required by section 15-79-125(E). Id. § 15-79-125(E) ("If the matter 

cannot be resolved through mediation, the plaintiff may initiate the civil action by 

filing a summons and complaint pursuant to the South Carolina Rules of Civil 

Procedure. The action must be filed: (1) within sixty days after the mediator 

determines that the mediation is not viable, that an impasse exists, or that the 

mediation should end; or (2) prior to expiration of the statute of limitations, 

whichever is later." (emphasis added)). Consequently, Wilkinson complied with 

the pre-litigation requirements and timely initiated her civil action. 
C. Dismissal of Civil Action with Prejudice 

Having found that Wilkinson timely initiated her civil action, the question 

becomes whether the Complaint was sufficient to comply with the requirements of 

section 15-36-100 as Wilkinson never supplemented this pleading with an expert 

affidavit. 

As a threshold matter, we disagree with any contention that the clerk of 

court's assignment of separate Common Pleas case numbers to the NOI and the 

Complaint converted Wilkinson's medical malpractice case into two civil cases that 

required two expert affidavits. The assignment of a different case number to the 

pre-litigation pleadings and the litigation pleadings is of no consequence because 

they both comprise a single medical malpractice claim. See Fisher v. Pelstring, 

817 F. Supp. 2d 791, 807 n.8 (D.S.C. 2011) (analyzing procedures for initiating 

medical malpractice claims and stating "[s]ection 15-79-125 also does not include 

any language indicating that the case number under which a Notice of Intent is 

served on a defendant must be the same as the case number assigned to the 

complaint served on that defendant if a civil action is ultimately initiated"). 

Once Wilkinson initiated the civil action, the proceedings continued to be 

governed by section 15-36-100. Significantly, section 15-36-100(B) states: 

Except as provided in Section 15-79-125, in an action for damages 

alleging professional negligence against a professional licensed by or 

registered with the State of South Carolina and listed in subsection 

(G) or against any licensed health care facility alleged to be liable 

based upon the action or inaction of a health care professional 

licensed by the State of South Carolina and listed in subsection (G), 

the plaintiff must file as part of the complaint an affidavit of an expert 

witness which must specify at least one negligent act or omission 

claimed to exist and the factual basis for each claim based on the 

available evidence at the time of the filing of the affidavit. 

S.C. Code Ann. § 15-36-100(B) (Supp. 2013) (emphasis added). As we interpret 

this provision, the plain language of the first sentence expressly exempts a medical 

malpractice claimant from filing a second expert affidavit as one has already been 

filed with the NOI pursuant to section 15-79-125. 

Such a construction harmonizes the two statutes and is consistent with the 

intent of the legislature to create a unique pre-litigation period of discovery and 
 

 

mandatory mediation via section 15-79-125 in order to filter out frivolous claims at 

the earliest stage in medical malpractice cases. However, this procedure does not 

create two separate cases. Rather, the plaintiff must properly initiate the claim 

with the NOI and attempt to resolve the case within a short timeframe. If the 

parties fail to resolve the case through mediation, the case almost immediately 

progresses as a customary professional negligence action. Thus, to require a 

second expert affidavit at the litigation stage in the proceeding leads to an absurd 

result as the plaintiff's claim has not changed during the pre-litigation proceedings. 

This conclusion, however, does not obviate the need for a plaintiff to offer 

additional expert testimony as it may be necessary to withstand a defendant's 

motion for summary judgment or to support the claim at trial.7 

Finally, such an interpretation is consistent with the Court's decisions to 

permit medical malpractice cases to proceed on the merits rather than to affirm 

unwarranted dismissals based on technical noncompliance with the medical 

malpractice statutes. See Ross v. Waccamaw Cmty. Hosp., 404 S.C. 56, 744 S.E.2d 

547 (2013) (concluding that failure to timely complete the pre-litigation mediation 

process as required by section 15-79-125 does not divest the trial court of subject 

matter jurisdiction or mandate dismissal); Grier v. AMISUB of S.C., Inc., 397 S.C. 

532, 725 S.E.2d 693 (2012) (holding that the pre-litigation expert affidavit, which 

is filed pursuant to section 15-79-125, must specify at least one negligent act or 

omission and the factual basis for each claim, but does not need to include an 

opinion as to proximate cause and, therefore, medical malpractice claimant's case 

could proceed as the pre-litigation affidavit was sufficient). 

Based on the foregoing, we hold the circuit court erred in granting 

Respondents' motions to dismiss as Wilkinson's Complaint was timely and 

sufficient to properly initiate a civil action for medical malpractice. In view of our 

decision, it is unnecessary to address Wilkinson's remaining argument that she 

should be permitted to supplement her Complaint with an expert affidavit based on 

Spence. See Futch v McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 

7

 Although East Cooper references decisions from other jurisdictions to support 

the contention that a second affidavit is required, its reliance on these cases is 

misplaced as the underlying state statutes are distinctly different from our state's 

medical malpractice statutes. Moreover, our research did not reveal any state 

statutes that were identical to those in this state. Thus, even though cases from 

other jurisdictions involving medical malpractice may provide guidance as to 

policy or theory, the text of the underlying statutes is not similar enough to be 

dispositive in the instant case. 
 

518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining 

issues when its determination of a prior issue is dispositive of the appeal). 

IV. Conclusion 

Having reversed Ranucci I, we hold Wilkinson could invoke section 15-36-

100(C)(1), which extended the time for filing the expert witness affidavit with her 

NOI and tolled the statute of limitations. As a result, Wilkinson timely filed her 

Complaint. Moreover, Wilkinson was not required to file a second expert witness 

affidavit in order to properly initiate her civil action because the affidavit filed with 

her NOI was sufficient for statutory compliance. Accordingly, we reverse the 

decision of the circuit court and remand the case for further proceedings. 

REVERSED AND REMANDED. 

TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J., 

dissenting in a separate opinion. 
JUSTICE PLEICONES: I respectfully dissent. Appellant failed to file an expert 

witness affidavit contemporaneously with her Notice of Intent to File Suit as 

mandated by S.C. Code Ann. § 15-79-125(A) (Supp. 2013). I would therefore 

affirm the circuit court's decision. See Ranucci v. Crain, Op. No. 27422 (S.C. Sup. 

Ct. filed July 23, 2014) (Pleicones, J., dissenting).