Johnson v. Roberts, 830 S.E.2d 910, 427 S.C. 258 (2019)

June 19, 2019 · · Appellate Case No. 2018-000914; Opinion No. 27897

830 S.E.2d 910, 427 S.C. 258

Clair Craver JOHNSON, Respondent,
v.
John ROBERTS, M.D., Petitioner.
and
Clair Craver Johnson, Respondent,
v.
Medical University of South Carolina, Petitioner.

Appellate Case No. 2018-000914
Opinion No. 27897

Supreme Court of South Carolina.

Submitted June 17, 2019
Filed June 19, 2019
Rehearing Denied August 14, 2019

Donald J. Davis, Jr., Stephen L. Brown, James E. Scott, IV, and Russell G. Hines, all of Young Clement Rivers, LLP, Joseph C. Wilson, IV and William P. Early, both of Pierce, Sloan, Wilson, Kennedy & Early, L.L.C., all of Charleston, for Petitioner.

Jonathan B. Asbill, of Baker Ravenel & Bender, LLP of Columbia, for Respondent.

JUSTICE HEARN :

Petitioners Dr. John Roberts and the Medical University of South Carolina (MUSC) sought a writ of certiorari to review the court of appeals' decision in Johnson v. Roberts , 422 S.C. 406, 812 S.E.2d 207 (Ct. App. 2018).¹ Respondent Clair Johnson filed a medical malpractice action alleging Roberts and MUSC negligently treated Johnson with electroconvulsive therapy. Roberts and MUSC moved for summary judgment, contending the six-year statute of repose² barred her claims, and the circuit court agreed, holding the repose period began on the first date of treatment. On appeal, the court of appeals reversed, relying on its decision in Marshall v. Dodds³ to hold that there was evidence to support Johnson's claim that Roberts and MUSC acted negligently within six years of filing her lawsuit. This Court recently affirmed as modified the court of appeals' Marshall decision, holding the statute of repose begins to run after each occurrence.

Roberts and MUSC now contend that the court of appeals erred in finding Johnson's claims preserved for review and in holding the statute of repose began after each occurrence. We disagree and affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: (1) As to issue preservation, see Atl. Coast Builders & Contractors, LLC v. Lewis , 398 S.C. 323, 330, 730 S.E.2d 282, 285 (2012) ("While it may be good practice for us to reach the merits of an issue when error preservation is doubtful, we should follow our longstanding precedent and resolve the issue on preservation grounds when it clearly is unpreserved.") (emphasis added), and (2) As to the merits, we find the allegations of medical malpractice indistinguishable from those in Marshall .

AFFIRMED.

BEATTY, C.J. and FEW, J., concur. JAMES, J., dissenting in a separate opinion in which KITTREDGE, J., concurs.

JUSTICE JAMES :

I dissent based on my dissenting opinion in Marshall .

KITTREDGE, J., concurs.

1 For a full recitation of the facts, see the court of appeals' opinion.

2 S.C. Code Ann. § 15-3-545(A) (2005).

3 417 S.C. 196, 789 S.E.2d 88 (Ct. App. 2016), aff'd as modified , Op. No. 27873 (S.C. Sup. Ct. filed March 27, 2019) (Shearouse Ad. Sh. No. 13 at 37 ), reh'g denied (May 30, 2019).