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2010-UP-425 - Cartee v. Countryman

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

Corrie R. Cartee, as personal representative for the Estate of Gene Edward Cartee, Sr., deceased, Appellant,

v.

David Mark Countryman, M.D.; Walter S. Revell, Jr., M.D.; Piedmont Surgical Associates of York County, P.A.; Amisub of South Carolina, Inc. d/b/a Piedmont Medical Center; Tenet Healthcare Corp., d/b/a Piedmont Healthcare System and Piedmont Medical Center; Nathaniel C. Edwards, M.D.; Thomas V. Johnson, M.D.; Harry E. Hicklin, III, M.D., The Sanger Clinic, P.A.; Rajesh Hari Kedar, M.D.; Metrolina Medical Associates, P.A.; and Robert Paul Neueton Mingus, M.D.;, Defandants,/Oof whom David Mark Countryman, M.D.; and Piedmont Surgical Associates of York County, P.A.and Rajesh Hari Kedar, M.D.; Metrolina Medical Associates, P.A.;and Robert Paul Neueton Mingus, M.D. are the Respondents.


Appeal From York County
 S. Jackson Kimball, III, Circuit Court Judge


Unpublished Opinion No. 2010-UP-425
Heard June 16, 2010 – Filed October 6, 2010


REVERSED


Benjamin Mabry and Charles L. Henshaw, Jr., both of Columbia, for Appellant

Ashby W. Davis, , Steven A. Snyder, David L. Williford, Collie W. Lehn, Jr., all of Greenville, Edward G. Smith and H. Spencer King ,both of Spartanburg, Robert H. Hood and Mary Agnes Craig, both of Charleston for Respondents.

PER CURIAM: In this medical malpractice case, the estate of Gene Edward Cartee Sr., (Cartee) appeals the special referee's grant of summary judgment in favor of multiple respondents.  We reverse.

FACTS

On December 19, 2002, Gene Edward Cartee Sr. (Cartee) arrived at the emergency department of Piedmont Medical Center of Rock Hill, suffering from rectal bleeding.  He was admitted under the care of internist Maria Redmond, M.D., an employee of Metrolina Medical Assoc., P.A.  Redmond consulted gastroenterologist Larry Pennington, M.D. who conducted a colonoscopy on December 20, discovering two cancerous masses in Cartee's large intestine.  Because one of masses appeared to completely block the intestine, Redmon and Pennington consulted general surgeon David Mark Countryman, M.D.  After examination and review of Cartee's medical history, Countryman recommended an abdominal colectomy because of active colon bleeding and because one of the cancerous masses threatened to completely block the colon, both conditions Countryman opined were life-threatening.  Accordingly, the surgery was scheduled for December 23.

On December 21, Rajesh Hari Kedar, M.D. took over the internal medicine aspects of Cartee's care from Redmond and conducted a review of Cartee's pre-op EKG, and lab results.  Kedar stated that because Cartee indicated he had no chest pains, shortness of breath, chest pressure, or symptoms of angina, he did not recommend a pre-op cardiac stress test.  The following day, December 22, Richard Tarvers, M.D. conducted a pre-op anesthesia evaluation.  Then again, on the morning of surgery, Tarvers's partner Dr. Mingus evaluated Cartee and served as the anesthesiologist for the colectomy.  Neither Kedar, Countryman, Mingus, Redmon or Tarvers indicated Cartee needed further cardiac work-ups or testing prior to surgery, or voiced any concern to warrant postponing the surgery.  On December 23, Countryman successfully removed nearly all of Cartee's colon.

On December 26, Cartee developed atrial fibrillation (irregular heartbeat) and as a result cardiologist Nathaniel Edwards, M.D., was consulted to treat the condition.  On the evening of December 29, Cartee suffered a heart attack.  The following morning, Cartee apparently had either a second heart attack or a continuation of the same "coronary event" which caused the first heart attack.  As a result of this "coronary event," Harry E. Hicklin, III, M.D. conducted an emergent catheterization by performing a balloon angioplasty on the anterior descending artery and inserting a stent.  On January 3, 2003, Dr. Edwards performed a second catheterization, placing a stent in the circumflex. 

On January 7, 2003, Cartee died of severe coronary artery disease.  Corrie Cartee, the personal representative of Cartee's estate brought this medical malpractice claim against seven doctors involved in Cartee's care and their respective professional associations.  On July 11, 2008, the trial court entered an order granting summary judgment in favor of Countryman and his professional association Piedmont Surgical Associates.  Subsequently, on August 14, 2008, the trial court entered summary judgment in favor of Kedar and Mingus as well.  Cartee now appeals the trial court's grant of summary judgment as to Countryman, Kedar, Mingus, and their respective professional associations.  On December 29, 2008, this court granted a motion to consolidate the appeals. 

ISSUE

Did the trial court err in granting summary judgment because Cartee did not create a genuine issue of material fact as to whether the respondents deviated from the generally recognized standard of care and caused Cartee's injury and death?[1] 

STANDARD OF REVIEW

Summary judgment is a drastic remedy, "[t]he purpose of [which] is to expedite the disposition of cases which do not require the services of a fact finder."  Singleton v. Sherer, 377 S.C. 185, 198, 659, S.E.2d 196, 205 (Ct. App. 2008).  Rule 56(c), SCRCP provides that summary judgment is proper when: "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  On appeal, an appellate court applies the same standard as the trial court under Rule 56(c), and likewise must view the evidence and all inferences therefrom in the light most favorable to the non-moving party.  Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). 

LAW/ANALYSIS

In order to establish a genuine issue of material fact sufficient to overcome summary judgment a plaintiff in a medical malpractice case must provide evidence of (1) a generally recognized and accepted standard of care, and (2) a departure from that standard by the defendant.  David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 4 (2006).  In this regard, a plaintiff "must provide expert testimony to establish both the required standard of care and the defendant['s] failure to conform to that standard[] . . . ."  Id. at 248, 626 S.E.2d at 4.  However, to overcome summary judgment, the non-moving party need only present a scintilla of evidence creating a genuine issue of material fact.  Zurich Am. Ins. Co. v. Tolbert, 387 S.C. 280, 283, 692 S.E.2d 523, 524 (2010); Hancock v. Mid-South Mgmt. Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009). 

In this case, Cartee avers, as to each respondent, the trial court erred in (1) finding no genuine issue of material fact as to a recognized standard of care, (2) finding no genuine issue of material fact tending to establishing a deviation from that standard of care, and (3) finding Cartee's expert, Vasquez, did not testify as to proximate cause with the requisite degree of certainty.

Upon review of the record, pleadings, affidavits, and Vasquez's deposition, we believe Cartee presented a scintilla of evidence sufficient to withstand summary judgment.  As to the first element, Vasquez's deposition and affidavit opined that the appropriate standard of care is one common to all physicians and required the respondents to conduct further evaluation and testing of Cartee's cardiac functionality.  Whether this standard is appropriate under the circumstances, or whether some other standard is imposed by virtue of being a specialist in a particular field is an issue of fact. 

Similarly, Vasquez's affidavit and deposition present a scintilla of evidence that the respondents deviated from the standard of care by failing to consider or notice certain "risk factors" and make further inquiry into Cartee's cardiac condition.  Whether these factors were known to the respondents at the time, or whether each doctor's failure to consult a cardiologist or investigate further amounts to a deviation from Vasquez's alleged standard of care are issues of fact.

Finally, as to the issue of proximate cause, Vasquez's affidavit states that in his opinion Cartee's death "most probably could have been prevented, had [he] received . . . treatment meeting the standard of care."  Further, Vasquez opined that certain risk factors should have provided sufficient indication of the need for the pre-op cardiac evaluation, which would have ultimately led to a different course of treatment and/or action.  We find that in the light most favorable to Cartee, this suffices as a mere scintilla of evidence sufficient to withstand summary judgment.  We recognize the depositions of the attending cardiologists diverge from Vasquez's testimony as to what tests would have been conducted and how the course of treatment would or would not have altered had the request for a cardiac evaluation been made; however, Cartee is only required to present a scintilla of evidence to survive the motion.  Accordingly, we hold the trial court erred in granting summary judgment.

CONCLUSION

For the reasons stated above, the ruling of the trial court is

REVERSED.

FEW, C.J., THOMAS and PIEPER JJ., concur.



[1]  We note Cartee also makes the following arguments pertaining specifically to respondent Mingus:  (1) Did the trial court erroneously base its grant of summary judgment on a ground not raised by the defendant's motion? (2) Did the trial court err in granting summary judgment on the grounds that Cartee's expert did not testify on the issue of proximate cause with the requisite certainty? (3) Did the trial court err in holding Cartee's expert testimony was not sufficient to establish a standard of care by an anesthesiologist to ask for a pre-surgical heart evaluation?  However, in light of our disposition, we need not address these issues.