All states have what are called statutes of limitation on civil actions. This is a time limit within which you have to actually file a lawsuit in court or you lose any right you have to recover from the at fault party. As a general rule you only have three years from the date of the accident to make your claim in court. This time limit is usually strictly enforced so even if you miss by just one day, your lawsuit may be dismissed.
Like almost all legal rules, there are exceptions. One is called the DISCOVERY RULE that can come into play if you did not discover that you were injured until sometime after the accident. This is an exception to the statute of limitations and proving that you are still entitled to sue can be difficult.
“Under the discovery rule, the limitations period commences when the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some claim against another party might exist." Wiggins v. Edwards, 314 S.C. 126, 128, 442 S.E.2d 169, 170 (1994).
One exception to the discovery rule that medical malpractice claims are completely barred after six years even if you did not discover the injury until after that time. Also, if the doctor left something in your body, such as a sponge, etc., you only have two years to file your claim.
There may also be a shorter time that the three years where the at fault party is a governmental entity. The bottom line is that you do not want to lose your right to recover damages from your personal injury just because of a legal technicality. That is why it is very important to contact a South Carolina personal injury attorney as soon as possible after the accident.
If you were partially at fault for the accident, your recovery of damages for your personal injury can be reduced or even denied. "a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant. The amount of the plaintiff's recovery shall be reduced in proportion to the amount of his or her negligence. If there is more than one defendant, the plaintiff's negligence shall be compared to the combined negligence of all defendants." Nelson v. Concrete Supply Co., 399 S.E.2d 783, 303 S.C. 243 (S.C., 1990).
This is called the doctrine of comparative negligence. In other words, if you were 51% or more at fault in the accident, then you cannot recover anything. If you were less that 51%, then your recovery is reduced by your percentage of fault. For example, you are awarded $100,000 from an automobile accident but the jury finds that you were 30% at fault, then you would only receive $70,000.
It is very difficult in South Carolina to win a medical malpractice lawsuit. The burden of proof is very high and South Carolina juries tend to be very conservative. Then, if you do win and are awarded damages, you will find out that there is a law that limits how much you can recover regardless of the extent of your injuries.
Like all personal injury claims, your damages are divided into two parts. The first part is your out of pocket expenses such as lost wages, medical bills (yes they will still bill you), prescriptions, transportation, etc. There is no dollar limit on your recovery for these types expenses, often called actual economic damages. The other part of your damages is for compensation for the Pain and Suffering that you have endured as a result of the doctor making a mistake.
Under the South Carolina Code of Laws governing noneconomic damages, Section 15-32-220, recovery for Pain and Suffering in a medical malpractice personal injury is limited to $350,000
when the at fault party is against a single health care provider. If there is more than one at fault party, you can recover $350,000 per party up to a maximum limitation of $1.05 million.
Under the South Carolina Tort Claims Act, "[t]he State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances" subject to limitations and exemptions from liability and damages as provided within the Act. S.C. Code Ann. § 15-78-40 (2005).
This is called the Tort Claims Act and limits your recovery against a South Carolina government. The Act established a maximum personal injury recovery amount of $300,000 per person for acts arising from a single accident. The total amount that can be recovered from a single accident cannot exceed $600,000 regardless of the number of claims, governments or agencies involved.
For example, you are involved in an accident with a city vehicle and the jury determines that your damages are $600,000. The judge will reduce that amount to $300,000 and you will only be partially compensated for your personal injury damages.
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