An expert affidavit is a sworn statement identifying allegedly negligent professional care and the facts supporting that opinion. South Carolina generally requires this document alongside a pre-suit Notice of Intent before a medical malpractice lawsuit begins.
The affidavit provides an initial expert assessment of the care in question. It does not prove the entire case or establish that an unfavorable medical outcome results from negligence.
Morris Law, LLC evaluates these requirements when reviewing potential medical malpractice claims throughout South Carolina.
What Does South Carolina Law Require?
Under S.C. Code § 15-36-100, the affidavit must identify at least one allegedly negligent act or omission. It must also explain the factual basis available to support that allegation.
The statute covers designated licensed professionals, including physicians, nurses, dentists, chiropractors, and pharmacists. Certain claims involving healthcare facilities also fall within its scope.
For example, an infection after surgery does not, by itself, establish malpractice. An expert might instead identify a failure to respond appropriately to documented warning signs and explain why that response falls below accepted standards.
For medical malpractice claims, § 15-79-125 generally requires filing the affidavit with a Notice of Intent to File Suit. Limited exceptions and filing allowances may apply.
Who Can Provide an Expert Affidavit?
The expert must have qualifications relevant to the professional conduct being challenged. Section 15-36-100(A) provides alternative qualification pathways involving:
- Professional credentials: An appropriate license and board certification, where applicable, in the relevant area of practice.
- Recent practice or teaching: Qualifying experience in the relevant area during at least three of the preceding five years.
- Specialized expertise: Scientific, technical, or other specialized knowledge supporting the person’s ability to address the allegations.
These are alternative statutory pathways, rather than a checklist every expert must satisfy in full. The expert’s background must support the specific opinion offered. A medical license alone does not establish expertise in every treatment or specialty.
Does the Affidavit Have to Prove What Caused the Injury?
The initial affidavit must identify allegedly negligent conduct and supporting facts, but it does not need a separate causation opinion. In Grier v. AMISUB of South Carolina, Inc., the South Carolina Supreme Court distinguishes these requirements from proving the entire claim.
For example, an expert may identify a failure to respond appropriately to abnormal test results. Proving that the resulting delay worsens the patient’s condition is a separate question. A successful malpractice claim generally still requires evidence connecting the negligent care to the injury, often through additional expert testimony.
When Is an Expert Affidavit Filed?
Under S.C. Code § 15-79-125, the affidavit ordinarily accompanies a Notice of Intent to File Suit before the lawsuit begins. The notice names the proposed defendants and briefly states the claim’s factual basis. The affidavit supplies expert support for the alleged professional negligence.
The pre-suit process generally includes:
- Filing and service: The notice and affidavit are filed, and the named defendants receive formal service of the notice.
- Limited information exchange: Parties may obtain relevant records through subpoenas. Depositions require court permission.
- Mandatory mediation: The parties generally participate between 90 and 120 days after service. A court may allow up to 60 additional days for good cause.
Filing the notice pauses applicable statutes of limitations, but it does not create an unlimited period to pursue the case. If mediation fails, statutory rules determine when the lawsuit must begin.
Are There Exceptions to the Affidavit Requirement?
S.C. Code § 15-36-100(C) recognizes limited exceptions and filing allowances. Their availability depends on the allegations and specific statutory conditions.
Conduct Within Common Knowledge
An affidavit is not required to support allegations that ordinary knowledge and experience can evaluate without specialized professional learning.
However, an injury occurring in a hospital does not automatically qualify. Questions involving diagnosis, surgical judgment, or treatment decisions ordinarily require medical expertise. The conduct being challenged determines whether this exception applies.
Limited Additional Time Near a Filing Deadline
A narrow allowance applies when the limitations period expires, or reasonably appears to expire, within ten days of filing. The plaintiff must also allege that time constraints prevent preparation of the affidavit.
When those conditions are met, the statute allows 45 days after filing to provide the affidavit. A court may grant additional time for good cause.
In Ranucci v. Crain, the South Carolina Supreme Court confirms that this allowance can apply to the pre-suit notice process. It does not provide an automatic extension whenever a claim needs more investigation.
What Happens if an Affidavit Is Missing or Defective?
A missing or inadequate affidavit can put a claim at risk of dismissal. However, the available response depends on the problem, filing deadlines, and applicable procedural rules.
Under S.C. Code § 15-36-100(E), a defendant may challenge specific defects through a timely motion to dismiss. The plaintiff generally has 30 days after service of that motion to amend the affidavit and address the alleged defect. The court may extend that period at its discretion.
This correction process does not automatically excuse a missing affidavit or resolve every qualification issue. Missing-affidavit cases involve separate statutory provisions, and an expired filing deadline can limit the options for continuing the claim.
Why Does Expert Review Matter?
A complication or unsuccessful treatment does not necessarily mean malpractice occurs. Expert review examines whether the professional’s decisions meet accepted standards under the circumstances.
That assessment may involve:
- Treatment notes documenting symptoms and clinical decisions
- Imaging and laboratory results available during care
- Medication orders and administration records
- The timing of testing, treatment, and follow-up
For a delayed diagnosis, the expert considers what information the treating professional has when making decisions. The review should assess that conduct without assuming the eventual diagnosis is obvious from the beginning.
The affidavit provides initial support for an alleged departure from accepted care. Additional evidence generally remains necessary to establish how that departure causes injury and what losses result.
Getting Answers About Possible Medical Negligence
An expert affidavit provides initial support for a malpractice allegation, but it does not prove the entire case. The expert’s qualifications, supporting facts, and filing requirements all matter.
If you have concerns about medical care, Morris Law, LLC can review your circumstances and explain the next steps. Contact our team to discuss what happened, the harm you experienced, and your options for pursuing a claim.