Under South Carolina law, every case involving medical malpractice must first go through pre-suit mediation before filing the actual lawsuit.

What is Pre-Suit Mediation?

In order to begin a formal medical malpractice claim in South Carolina, a plaintiff-that is the injured party or personal representative if involving a wrongful death in a medical malpractice case -must file a Notice of Intent to Sue with the court. After filing the Notice of Intent to Sue, the parties must participate in pre-suit mediation between 90-120 days after the filing of the Notice of Intent to Sue. The attorneys for each party usually agree on a mediator in the case.

These are a few of the most common questions I receive regarding pre-suit mediation from my medical malpractice clients.

• Will my medical malpractice case get resolved?
• What does pre-suit mediation in South Carolina typically involve?
• If my medical malpractice case does not get settled at mediation, what happens next?

Will your case get resolved at pre-suit mediation?

Your case can get settled at mediation. If the facts are sufficiently clear, the damages are known and the parties desire to settle the case, it can get done during mediation. In order for that settlement to occur, both sides must really want to get the case settled.

Sometimes a doctor or hospital knows that there has been a mistake and the doctor or hospital or insurance company does not want to spend money defending the claim. Therefore, the claim settles.

However, it has been my experience, and in talking with other South Carolina medical malpractice lawyers, it is the rare medical malpractice case that gets settled at pre-suit mediation. Although the plaintiff usually understands all the facts of the case and the damages sustained, and is in a position to settle the claim, the defense, i.e. the doctor, hospital or the insurance company does not feel ready to settle the case. The defense usually needs more time to investigate the case, take witness depositions and interview expert witnesses in its own defense.

What does pre-suit mediation in South Carolina typically involve?

Pre-suit mediation usually involves either one of two scenarios. In scenario No. 1, if the defense wants to settle the case, then a full mediation session will be held with attorneys, insurers and the parties present. The mediation will normally last anywhere from 3-8 hours.

In scenario No. 2, the defense lawyer will usually advise the patient’s lawyer that the defense is not ready to settle the case because more work needs to be done. Then, a short (5-10 minute) mediation over the telephone is held with the mediator and all attorneys. The mediator will then file a report with the court after the telephone mediation is completed.

What happens if my medical malpractice case does not get settled at pre-suit mediation?

If your medical malpractice case does not get settled at mediation –its “no harm no foul”. You will still get to pursue your case. Your lawyer will then file your formal lawsuit within 60 days after the mediator issues his report. In reality, most South Carolina lawyers handling medical malpractice claims will file your formal summons and complaint well before the 60-day deadline. Once your case is formally filed, you will then go into litigation and discovery.

You will again participate in mediation usually about 10-12 months after formally filing the lawsuit.

Wrap Up

These are just a few of the common concerns and answers regarding pre-suit mediation. If you have any additional questions about pre-suit mediation or happen to suffer serious personal injury, please don’t hesitate to contact Thomas Creech Law Offices by phone at 864-235-4999 or through the contact form below.

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