Our Fight Against Harmful Medical Malpractice Reform
We returned to the statehouse this October to defend South Carolina’s most vulnerable patients as the legislature gears up to attempt to modify the laws governing medical malpractice actions for the second year in a row. The proposed changes would strip away crucial protections for patients who suffer from the most egregious medical errors. If successful, this will be the first overhaul of our state’s medical malpractice laws since 2005.
The reforms introduced by the 2005 Medical Malpractice Reform Act were designed to prevent frivolous lawsuits against medical providers. One effective reform was to add the requirement that, before a medical malpractice lawsuit can be filed, a less formal Notice of Intent to File a Lawsuit must be filed in the county in which the malpractice occurred. The Notice of Intent must include a sworn statement from a medical professional in the same specialty as the medical professional who allegedly committed the negligence. The sworn statement must verify that the medical records alone confirm that the defendant has breached the required standard of care. This must be done without the benefit of any testimony or interviews from the medical providers, as these can only occur once the affidavit requirement has been met.
These reforms have done a great deal to prevent frivolous medical claims in our state and to foster the stated goal of attracting qualified medical providers to South Carolina. Indeed, our hospital systems are expanding at unprecedented rates, and our state ranks among the top 10 for highest physician salaries in the U.S., despite ranking in the bottom third for total income level across our population.
The legislation proposed for 2026 deals with the opposite end of the spectrum by eliminating protections for the victims of extreme medical negligence. Unlike any other industry, South Carolina has a complex set of damages caps that apply only to medical malpractice actions. There are rigid caps of $1.2 million on total damages that apply in cases against governmental and charitable medical facilities. This fixed cap can apply even in clear instances of malpractice in which a patient has already incurred over $10 million in medical bills alone. Separate caps apply to “investor-owned” medical facilities, or those operated by publicly traded corporations. Under these caps, a parent can be limited to collecting $580,461 in total compensation for the grief and sorrow associated with the wrongful death of a child. Exceptions to these very restrictive caps exist if a jury determines that a medical provider acted with gross negligence rather than ordinary negligence.
The proposed legislation for 2026 aims to do away with this “safety value” by eliminating the exception to the caps in instances of gross negligence. As we testified in front of the South Carolina House Judiciary Committee, this would be akin to attempting to improve road safety by eliminating the penalties for Felony DUI; it rewards the worst offenders while doing nothing to improve overall safety.
While the 2005 legislation was designed to aid in the recruitment of qualified professionals and thereby improve the quality of medical care by eliminating the threat of frivolous lawsuits, this legislation operates to give a pass to those who a jury of our citizens determines to have acted with gross negligence. As we informed the South Carolina Senate Subcommittee on Tort Reform in the spring of 2025 and the South Carolina House of Representatives Judiciary Committee in October, we cannot agree that such changes are in the best interests of South Carolina patients.
We urge all South Carolinians to contact their representatives and demand that they protect patients, not those who harm them through gross negligence.