             THE STATE OF SOUTH CAROLINA
                  In The Supreme Court

     Amy Elizabeth Williams, as the Personal Representative
     of the Estate for deceased minor; and Amy Elizabeth
     Williams, individually, Plaintiffs,

     v.

     Quest Diagnostics, Inc., Athena Diagnostics, Inc., and
     ADI Holdings, Inc., Defendants.

     Appellate Case No. 2017-000787



                    CERTIFIED QUESTION


     ON CERTIFICATION FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
    Margaret B. Seymour, Senior United States District Judge


                      Opinion No. 27818
          Heard February 14, 2018 – Filed June 27, 2018


            CERTIFIED QUESTION ANSWERED


     Bradford W. Cranshaw, Trevor M. Hughey, G. Robert
     DeLoach, III, Matthew M. McGuire, and James Ervin, all
     of Columbia, for Plaintiffs.

     John C. Moylan, III, and Alice W. Parham Casey, both of
     Columbia, and Wallace K. Lightsey and Wade S. Kolb,
     III, both of Greenville, for Defendants.
JUSTICE KITTREDGE: This Court accepted the following certified question
from the United States District Court for the District of South Carolina:

        Is a federally licensed genetic testing laboratory acting as a "licensed
        health care provider" as defined by S.C. Code Ann. § 38-79-410
        when, at the request of a patient's treating physician, the laboratory
        performs genetic testing to detect an existing disease or disorder?

Answer: Yes.

                                            I.

This wrongful death action arises from the death of a minor. The deceased was a
young child experiencing seizures; the treating physician sent the child's DNA1 to
Defendants' genetic testing laboratory for the purpose of diagnosing the child's
disease or disorder. It is alleged the genetic testing laboratory failed to properly
determine the child's condition. The child died, and this action followed.
Defendants assert that the genetic testing laboratory is a "licensed health care
provider" pursuant to S.C. Code Ann. § 38-79-410 (2015). Defendants further
contend that Plaintiffs' claims concern medical malpractice, thereby rendering the
medical malpractice statute of repose applicable.2 See S.C. Code Ann. § 15-3-545

1
    The common abbreviation for deoxyribonucleic acid.
2
  Plaintiffs expressed concern that the question before us may be premature and
answering this certified question in the affirmative, as we do, may preclude other
arguments in support of the case moving forward. We recognize this concern, but
we believe it has been satisfactorily addressed by Defendants' concession at oral
argument that Plaintiffs' other arguments remain viable, unaffected by answering
the certified question in the affirmative. See Dawkins v. Union Hosp. Dist., 408
S.C. 171, 177–78, 758 S.E.2d 501, 504 (2014) (internal citations omitted) ("[N]ot
every injury sustained by a patient in a hospital [or by a licensed health care
provider] results from medical malpractice" and "if the patient instead receives
'nonmedical, administrative, ministerial, or routine care,' . . . the action instead
sounds in ordinary negligence. . . . Thus, medical providers are still subject to
claims sounding in ordinary negligence."). Therefore, we are merely answering
the narrow question certified by the federal court. We leave the determination of
(2005). A determination of the nature of Plaintiffs' claims (and the applicability of
the medical malpractice statute of repose) is not before us, only the narrow
question certified by the federal district court.

                                         II.

As defined in section 38-79-410, "'[l]icensed health care providers' means
physicians and surgeons; directors, officers, and trustees of hospitals; nurses; oral
surgeons; dentists; pharmacists; chiropractors; optometrists; podiatrists; hospitals;
nursing homes; or any similar category of licensed health care providers."
(emphasis added). "Our primary function in interpreting a statute is to ascertain
and give effect to the intention of the Legislature." Swanigan v. Am. Nat. Red
Cross, 313 S.C. 416, 419, 438 S.E.2d 251, 252 (1993) (citing Wright v. Colleton
Cty. Sch. Dist., 301 S.C. 282, 391 S.E.2d 564 (1990)). "When the Legislature uses
words of particular and specific meaning followed by general words, the general
words are construed to embrace only persons or things of the same general kind or
class as those enumerated." Id. (citing State v. Patterson, 261 S.C. 362, 200 S.E.2d
68 (1973)).

Under this canon of statutory construction, a genetic testing laboratory that
performs testing at the request of a patient's treating physician for the purpose of
assisting the treating physician in detecting an existing disease or disorder falls
within the definition of "licensed health care providers." Under these
circumstances, the genetic testing laboratory is performing diagnostic testing at the
request of a treating physician for the purpose of diagnosis and treatment, which is
a core function of hospitals in diagnosing and treating patients. See, e.g., S.C.
Code Ann. § 15-79-110(4) (Supp. 2017) ("'Hospital' means a licensed facility with
an organized medical staff to maintain and operate organized facilities and services
to accommodate two or more nonrelated persons for the diagnosis, treatment, and
care of such persons . . . ."); see also S.C. Code Ann. § 38-71-1920(7), (11), (12)
(2015) (providing the definition of a health care provider as "an institution
providing health care services"—"for the diagnosis, prevention, treatment, cure, or
relief of a health condition, illness, injury, or disease"—"including, but not limited
to, hospitals and . . . diagnostic, laboratory, and imaging centers" (emphasis
added)). Under the circumstances presented, the genetic testing laboratory fits
within the category provided by one of the specified designations in section 38-79-
410, a hospital. Thus, we conclude that a genetic testing laboratory in these

whether the statute of repose applies to this case in the capable hands of the United
States District Judge.
circumstances clearly falls within section 38-79-410's catchall of "any similar
category of licensed health care providers."

                                         III.

We answer the certified question in the affirmative—a genetic testing laboratory
that performs genetic testing to detect an existing disease or disorder at the request
of a patient's treating physician is acting as a "licensed health care provider" under
S.C. Code Ann. § 38-79-410.


CERTIFIED QUESTION ANSWERED.

BEATTY, C.J., FEW and JAMES, JJ., concur. HEARN, J., dissenting in a
separate opinion.
JUSTICE HEARN: Because I view the role played by Quest Diagnostics to be
distinguishable from the health care providers enumerated in section 38-79-410, I
respectfully dissent. The key commonality3 among the health care providers listed
in the statute is that all function to provide direct, face-to-face treatment to patients,
who in their own right conscientiously select these providers and rely on their skill,
expertise, and professional judgment. These are individuals and institutions who
make conclusive decisions about a patient's course of treatment. Although hospitals
may contain in-house diagnostic laboratories, I do not believe that fact standing
alone is dispositive of whether Quest falls within a similar category of health care
provider. It is the hospital at the institutional level, taken as the sum of its working
parts, which is covered by the statute––not its individual components. While Quest
may provide a medical service sometimes available at hospitals, the similarities end
there. I do not believe the limited, specialized services offered by Quest are
sufficient to render it similar to hospitals, which are holistic enterprises offering a
multitude of medical services and treatment options. Therefore, I would answer the
certified question, "No."




3
  Of course, the exception to this commonality are "directors, officers, and trustees
of hospitals," but their role is sufficiently different from that of a third party
diagnostic lab such that their inclusion does not render Quest a "similar category" of
licensed health care provider. When one considers agency principles, it becomes
clear why the General Assembly would include these individuals in the definition of
a licensed health care provider in order to offer increased protections in light of the
myriad litigation facing hospitals.
