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Justices suspend new law

Court rules against license mandate for expert witnesses

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South Carolina Supreme Court justices have stopped enforcement of a new medical-licensing requirement that concerned some local prosecutors who felt it would stymie their ability to try high-level criminal cases.

Act 385, jointly ratified by the S.C. House of Representatives and Senate in June, amended existing law to require out-of-state doctors to obtain a $75 temporary South Carolina medical license in order to provide expert testimony in civil and criminal cases in the state.

"The effect of the revised statutes has the potential to substantially impair the orderly administration of justice," said the Aug. 24 order to suspend enforcement of the law. The order was signed by all five justices.

The amendment's impact would have been minimal in parts of the state where criminal and civil cases typically rely on testimony from in-state physicians as legal experts.

But in areas like Beaufort County, which does not have a hospital with a Level 1 trauma unit, the effect was predicted to be much greater. Patients seriously injured in crimes here often are treated by doctors across the state line at Memorial Health University Medical Center in Savannah, the closest trauma unit to Hilton Head Island and Bluffton.

The Island Packet asked the hospital for comment on Thursday and had not received any by Saturday.

Duffie Stone, however, was quick to comment. The solicitor for the 14th judicial circuit, which includes Beaufort and Jasper counties, said the law would have affected many local cases his office tries.

"This would have had a huge impact on the criminal docket in (southern) Beaufort County," Stone said. "With any assault or any felony DUI case, how do you prove serious bodily injury? You put the doctor (who treated the victim) on the stand.

"We've probably received medical records on about a half-dozen cases from the Savannah hospital in recent weeks."

For example, Stone is relying on testimony from a Savannah doctor in his case against Leonard Lovette Jr., who faces charges including murder and high-and-aggravated assault and battery in Jasper County. The doctor treated Charlene Lovette, Leonard's wife, who was severely beaten earlier this year during an attack during which her mother was killed.

That's one of several cases Stone said he was prepared to indefinitely postpone until the Supreme Court intervened. His intention was to delay the cases while urging local legislators to change the law.

Act 385 was introduced in the Senate in May by Sen. Jim Ritchie, R-Spartanburg. Messages seeking comment on the impetus for the amendment were left at his office and home but had not been returned by Saturday.

But Dr. Louie Costa, vice president of the state Board of Medical Examiners, which is in charge of medical licensing, said the act's intent was accountability, something he supports.

"Right now we have no jurisdiction, enforcement or disciplinary action for testimony from witnesses that is injurious or malicious," he said.

Costa said in one recent incident, testimony a judge heard from an out-of-state physician was found to be malicious, but nothing could be done about it. The new law, he said, would have provided the same accountability for out-of-state doctors as in-state doctors.

But the Supreme Court said the licensing requirement went too far.

"We believe requiring a treating physician to seek a South Carolina medical license before offering often necessary testimony strains Act 385 far beyond its intended scope," the justices' opinion states.

Costa disagrees, saying the licensing process is swift. He said the licenses usually can be produced within 24 hours, and the cost likely would be covered by the plaintiff, plaintiff's attorney or defense firm.

"I don't think it's an unnecessary burden," he said. "We're ready to argue against that."

Costa said he thinks one reason the justices stopped enforcement of the amendment is that it did not include a provision to waive the licensing requirement for pending cases -- those that likely have established contracts between attorneys and witnesses.

Charles Henshaw, a Columbia lawyer and member of the S.C. Trial Lawyers Association, opposes the law, his secretary said. A message requesting to speak with Henshaw that was left on Friday was not returned.

The Supreme Court is asking the General Assembly to provide clarity when it reconvenes in January.

Meanwhile, Stone hopes the requirement will be scrapped.

"It hurts us because I don't have a major trauma center in my circuit and we rely heavily on other hospitals, especially Savannah," he said. "I can't imagine anybody on the criminal end thought through this before the law was created."

Contact Ben Crites at 706-8138 or . To comment on this story, please go to islandpacket.com.

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