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SC: Plaintiff Loses Out on Potential Recovery for Sitting on Her Rights

Kelly v. Logan, Jolley, & Smith, L.L.P., 383 S.C. 626 (S.C. App. 2009)

SC: Underlying medical malpractice action

Student Contributor: Karen Dindayal

Facts:  Kelly gave birth to her son, Watavious Barker who was born with irreversible brain damage and other permanent injuries. After spending the first two years after birth in the hospital, Watavious was then placed into foster care. When the child was about two-years old, Kelly retained Georgia counsel who got Logan, Jolley, & Smith, L.L.P. to file suit against the hospital, the delivering doctors, for medical malpractice. Counsel sued on behalf of the infant’s father, Barker, in his individual capacity and in his capacity as natural father and guardian ad litem for Watavious. Mother, Kelly, signed a letter indicating that she did not want to participate in the lawsuit as an individual party-plaintiff to the action.

The court later granted Counsel’s motion to substitute Kelly as guardian ad litem in the action, but denied its part of the motion to amend the Complaint to name Kelly as an individual party-plaintiff. By this time, the statute of limitations had run on any of Kelly’s possible medical malpractice claims . After the claims against the hospital were settled, Counsel moved to be relieved  in the remaining claims against the doctors and practice, to which Kelly agreed.

After the hospital settlement, Watavious’ foster parents moved to and were successful in terminating Kelly as gardian ad litem and naming themselves instead. Soon after, the claims against the doctors were also settled. Close to three years later, Kelly sued her former Counsel, Logan, Jolley, & Smith, L.L.P., alleging that they failed to represent her individual interests and sue for personal injuries suffered during the birth of the infant. Logan responded with a motion for summary judgment on the grounds that the statute of limitations had expired on Kelly’s legal malpractice claim. After the circuit court granted Counsels’ motion, Kelly appealed.

Issue:  Did the circuit court correctly grant Logan, Jolley, & Smith, L.L.P’s motion for summary judgment due to expiration of the statute of limitations?

Ruling: Yes. The statute of limitations is triggered by “diligently acquired” facts that are enough to put give an injured party notice of a cause of action for legal malpractice. Epstein v. Brown, 363 S.C. 372, 376, 610 S.E.2d 816, 818 (2005).

Lesson:   In SC, there is a three (3) year statute of limitations for actions for legal malpractice, that courts will adhere to in the interests of stimulating action on the part of the plaintiff  and in  reducing burden on the courts of trying “stale” cases when a plaintiff has sat on her rights. McKinney v. CSX Transp., Inc., 298 S.C. 47, 49-50, 378 S.E.2d 69, 70 (Ct.App.1989). Therefore, a plaintff should be mindful of any facts that could give rise to a legal malpractice claim, as they become ripe, to protect their rights. 

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Posted in: Litigation, South Carolina, Statute of Limitations, Torts/Personal Injury