        The Supreme Court of South Carolina
             Vicki L. Wilkinson, Appellant,

             v.

             East Cooper Community Hospital, Inc., d/b/a East
             Cooper Regional Medical Center, Carolina Plastic
             Surgery Institute, PA, and Thomas X. Hahm, M.D.,
             Respondents.

             Appellate Case No. 2012-213464


                                      ORDER



The petitions for rehearing are denied. This Court does, however, substitute the
attached amended majority opinion for the majority opinion previously filed in this
matter. The amended opinion deletes the last sentence of the second paragraph on
page nine of the original majority opinion.


                                  s/Jean H. Toal                              C.J.

                                  s/Donald W. Beatty                             J.

                                  s/John Kittredge                               J.

                                  s/Kaye G. Hearn                                J.

I would grant the petitions for rehearing.

                                  s/Costa M. Pleicones                           J.
Columbia, South Carolina
October 3, 2014
              THE STATE OF SOUTH CAROLINA 

                   In The Supreme Court 


      Vicki L. Wilkinson, Appellant,

      v.

      East Cooper Community Hospital, Inc., d/b/a East
      Cooper Regional Medical Center, Carolina Plastic
      Surgery Institute, P.A., and Thomas X. Hahm, M.D.,
      Respondents.

      Appellate Case No. 2012-213464



                 Appeal From Charleston County
             R. Markley Dennis, Jr., Circuit Court Judge


                       Opinion No. 27423 

           Heard May 20, 2014 – Refiled October 3, 2014 



                 REVERSED AND REMANDED 



John S. Nichols, of Bluestein Nichols Thompson & Delgado, L.L.C.,
of Columbia, and Daniel Nathan Hughey, of Hughey Law Firm,
L.L.C., of Mt. Pleasant, for Appellant.

Robert H. Hood, James Bernard Hood, Harry Cooper Wilson, III, and
Deborah Harrison Sheffield, all of Hood Law Firm, L.L.C., of
Charleston; Daniel Simmons McQueeney, Jr., Kathleen Fowler
Monoc, and Lindsay Kathryn Smith-Yancey, all of Pratt-Thomas
Walker, P.A., of Charleston, for Respondents.

Andrew A. Mathias, of Nexsen Pruet, L.L.C., of Greenville, for
Amicus Curiae, South Carolina Hospital Association.
       JUSTICE BEATTY: In this medical malpractice case, Vicki Wilkinson
appeals the circuit court's order dismissing her civil action with prejudice based on
the motions filed by East Cooper Community Hospital, Inc. ("East Cooper"),
Carolina Aesthetic Plastic Surgery Institute, P.A. ("Carolina Aesthetic Plastic
Surgery"), and Dr. Thomas Hahm (collectively "Respondents"). Wilkinson asserts
the court erred in finding: (1) the statute of limitations was not tolled because she
failed to file an expert witness affidavit contemporaneously with her Notice of
Intent to File Suit ("NOI") pursuant to section 15-79-125 of the South Carolina
Code;1 and (2) she failed to file her Complaint within the applicable statute of
limitations given she did not contemporaneously file an expert witness affidavit
with the Complaint or within forty-five days thereafter in accordance with section
15-36-100(C).2

1
    Section 15-79-125 provides, in part, as follows:

              Prior to filing or initiating a civil action alleging injury or death
       as a result of medical malpractice, the plaintiff shall
       contemporaneously file a Notice of Intent to File Suit and an affidavit
       of an expert witness, subject to the affidavit requirements established
       in Section 15-36-100, in a county in which venue would be proper for
       filing or initiating the civil action. . . . Filing the Notice of Intent to
       File Suit tolls all applicable statutes of limitations.

S.C. Code Ann. § 15-79-125(A) (Supp. 2013) (emphasis added).
2
    Section 15-36-100 provides in relevant part:

       (B) Except as provided in Section 15-79-125, in an action for damages
       alleging professional negligence against a professional licensed by or
       registered with the State of South Carolina and listed in subsection
       (G) or against any licensed health care facility alleged to be liable
       based upon the action or inaction of a health care professional
       licensed by the State of South Carolina and listed in subsection (G),
       the plaintiff must file as part of the complaint an affidavit of an expert
       witness which must specify at least one negligent act or omission
       claimed to exist and the factual basis for each claim based on the
       available evidence at the time of the filing of the affidavit.
       This appeal requires the Court to review the decision of the Court of Appeals
in Ranucci v. Crain, 397 S.C. 168, 723 S.E.2d 242 (Ct. App. 2012) ("Ranucci I"),
which held the pre-litigation filing requirement for a medical malpractice case
found in section 15-79-125 incorporates only the parts of section 15-36-100 that
relate to the preparation and content of an expert's affidavit. Recently, we reversed
Ranucci I, holding that section 15-79-125(A) incorporates section 15-36-100 in its
entirety. Ranucci v. Crain, Op. No. 27422 (S.C. Sup. Ct. filed July 23, 2014)
("Ranucci II"). Therefore, we hold that Wilkinson could invoke section 15-36-

      (C)(1) The contemporaneous filing requirement of subsection (B) does
      not apply to any case in which the period of limitation will expire, or
      there is a good faith basis to believe it will expire on a claim stated in
      the complaint, within ten days of the date of filing and, because of the
      time constraints, the plaintiff alleges that an affidavit of an expert
      could not be prepared. In such a case, the plaintiff has forty-five days
      after the filing of the complaint to supplement the pleadings with the
      affidavit.

      ....

      (D) This section does not extend an applicable period of limitation,
      except that, if the affidavit is filed within the period specified in this
      section, the filing of the affidavit after the expiration of the statute of
      limitations is considered timely and provides no basis for a statute of
      limitations defense.

      ....

      (F) If a plaintiff fails to file an affidavit as required by this section,
      and the defendant raises the failure to file an affidavit by motion to
      dismiss filed contemporaneously with its initial responsive pleading,
      the complaint is not subject to renewal after the expiration of the
      applicable period of limitation unless a court determines that the
      plaintiff had the requisite affidavit within the time required pursuant
      to this section and the failure to file the affidavit is the result of a
      mistake. The filing of a motion to dismiss pursuant to this section
      shall alter the period for filing an answer to the complaint in
      accordance with Rule 12(a), South Carolina Rules of Civil Procedure.

S.C. Code Ann. § 15-36-100(B), (C)(1), (D), (F) (Supp. 2013) (emphasis added).
100(C)(1), which extended the time for filing the expert witness affidavit with her
NOI and tolled the applicable statute of limitations. However, because the analysis
in Ranucci II was confined to the dismissal of the pre-litigation NOI, it is not
dispositive since the instant case involves the next procedural step in medical
malpractice litigation. Specifically, we must analyze whether Wilkinson's failure
to file an expert witness affidavit with her Complaint warranted the dismissal of
her civil action. We hold the circuit court erred in dismissing Wilkinson's civil
action as the expert affidavit filed with the NOI satisfied the statutory requirements
of section 15-36-100 and, thus, it was not necessary to file a second expert
affidavit in the same civil action. Accordingly, we reverse the circuit court's order
and remand the case for further proceedings.

                        I.    Factual / Procedural History

      On September 4, 2008, Wilkinson was admitted to East Cooper to undergo
reconstructive breast surgery performed by Dr. Hahm. Following the surgery,
Wilkinson experienced complications throughout 2008 that required additional
medical procedures.

       On September 1, 2011, Wilkinson filed an NOI pursuant to section 15-79-
125 against Respondents and several other defendants, which was designated as
Case No. 2011-CP-10-6306.3 Because the statute of limitations was due to expire
within a short period of time, Wilkinson did not include an expert witness affidavit
with the NOI, but stated that she would file one at a later date. On October 5,
2011, Wilkinson filed the affidavit of Dr. John D. Newkirk, a board certified
plastic surgeon.

      On January 25, 2012, five days after an unsuccessful attempt at pre-litigation
mediation, Wilkinson filed a Complaint against the defendants named in the NOI,
which was designated as Case No. 2012-CP-10-0558. Wilkinson did not file an
expert affidavit with the Complaint nor did she reference the NOI or otherwise
explain why she did not file an expert affidavit with the Complaint.



3
  In addition to Respondents, Wilkinson named Tenet Healthcare Corp. ("THC")
and Tenet Healthsystem Medical, Inc. ("THMI") as defendants. On April 18,
2012, Wilkinson entered into a consent order with THC and THMI to dismiss the
case as to them without prejudice. Thus, THC and THMI are not parties to this
appeal.
       Respondents separately answered and moved to dismiss pursuant to Rule
12(b)(6) of the South Carolina Rules of Civil Procedure on the ground the statute
of limitations had expired. Citing Ranucci I, East Cooper asserted the NOI did not
toll the three-year statute of limitations4 because Wilkinson failed to
contemporaneously file an expert affidavit with the NOI pursuant to section 15-79-
125. Therefore, East Cooper argued that Wilkinson's Complaint, which was filed
four months after the expiration of the statute of limitations, should be dismissed.
Alternatively, even if the statute of limitations did not expire on September 4,
2011, East Cooper claimed Wilkinson's failure to file an expert affidavit with her
Complaint or within forty-five days thereafter violated section 15-36-100 and
warranted dismissal. In a separate memorandum in support of their motion to
dismiss, Respondents Carolina Aesthetic Plastic Surgery and Dr. Hahm reiterated
the arguments raised by East Cooper.

       Wilkinson filed a memorandum in opposition to Respondents' motions.
Because Respondents engaged in pre-litigation mediation and did not move to
dismiss the NOI during the pre-litigation proceedings, Wilkinson maintained
Respondents waived any argument regarding her NOI and the expiration of the
statute of limitations. Additionally, Wilkinson asserted the failure to file an expert
affidavit with her Complaint did not warrant dismissal as Respondents were
already in possession of the previously filed affidavit of Dr. Newkirk.

       After a hearing, the circuit court granted Respondents' motions to dismiss
with prejudice. Based on Ranucci I, the court found that Wilkinson: (1) failed to
file an expert affidavit contemporaneously with her NOI as required by section 15-
79-125 and, thus, the statute of limitations was not tolled; and (2) failed to file an
expert affidavit contemporaneously with her Complaint or within forty-five days
thereafter as required by section 15-36-100. The court rejected Wilkinson's
contention that Respondents' participation in statutorily mandated pre-litigation
mediation waived their right to challenge the NOI. The court also found the
exception codified in section 15-36-100(C)(1), which extends the time for filing an
expert affidavit with the Complaint, was inapplicable because Wilkinson did not
provide any explanation as to why the expert affidavit was not filed and, in any


4
  See S.C. Code Ann. § 15-3-545(A) (2005) (providing that a medical malpractice
case "must be commenced within three years from the date of the treatment,
omission, or operation giving rise to the cause of action or three years from date of
discovery or when it reasonably ought to have been discovered, not to exceed six
years from date of occurrence, or as tolled by this section").
event, failed to file an expert affidavit within forty-five days of filing her
Complaint.

      Following the circuit court's denial of her motion for reconsideration,
Wilkinson appealed to the Court of Appeals. This Court granted Wilkinson's
motion to certify the appeal pursuant to Rule 204(b) of the South Carolina
Appellate Court Rules.

                              II.    Standard of Review

       "On appeal from the dismissal of a case pursuant to Rule 12(b)(6), an
appellate court applies the same standard of review as the trial court." Rydde v.
Morris, 381 S.C. 643, 646, 675 S.E.2d 431, 433 (2009). "That standard requires
the Court to construe the complaint in a light most favorable to the nonmovant and
determine if the facts alleged and the inferences reasonably deducible from the
pleadings would entitle the plaintiff to relief on any theory of the case." Id.
(internal quotations omitted). The Court may sustain the dismissal when "the facts
alleged in the complaint do not support relief under any theory of law." Flateau v.
Harrelson, 355 S.C. 197, 202, 584 S.E.2d 413, 416 (Ct. App. 2003).

                                    III.   Discussion

A.    Arguments

      Initially, Wilkinson challenges the propriety of Ranucci I and urges this
Court to reverse the decision of the Court of Appeals.5 If the Court reverses
Ranucci I, Wilkinson claims her NOI tolled the statute of limitations and,
therefore, neither the NOI nor the Complaint should have been dismissed as
untimely. However, even if her Complaint is deemed deficient based on her failure
to contemporaneously file an expert affidavit, she contends any deficiency did not
mandate dismissal. Rather, she asserts any dismissal under section 15-36-
100(C)(1) is permissive given the statute states that a plaintiff's Complaint is
"subject to dismissal for failure to state a claim." (Emphasis added.) Because
dismissal is not statutorily mandated, Wilkinson claims the appropriate remedy

5
  East Cooper asserts Wilkinson failed to preserve this issue for appellate review
because she did not raise it to the circuit court. This assertion is without merit.
Because the circuit court was bound to follow Ranucci I, it would have been futile
for Wilkinson to challenge the propriety of Ranucci I as the circuit court had no
authority to alter the decision of the Court of Appeals.
would be for her to be given an opportunity to cure any defect as the Court
permitted a plaintiff to file an amended Complaint after the expiration of the statute
of limitations in Spence v. Spence, 368 S.C. 106, 628 S.E.2d 869 (2006).6

       Alternatively, Wilkinson maintains her Complaint was not deficient as it
stated facts sufficient to support a cause of action and Respondents were already in
possession of the expert affidavit that was filed with the NOI. Thus, because
Respondents were not prejudiced by the alleged deficiency, Wilkinson claims
dismissal was not the appropriate sanction.

B.    Application of Ranucci II as to the Sufficiency of the NOI

       Recently, this Court reversed Ranucci I. Ranucci v. Crain, Op. No. 27422
(S.C. Sup. Ct. filed July 23, 2014) ("Ranucci II"). In so ruling, we held that section
15-79-125(A) incorporates section 15-36-100 in its entirety. Thus, we ruled that a
medical malpractice claimant may invoke section 15-36-100(C)(1), which permits
the claimant to file an expert witness affidavit within forty-five days after filing the
NOI. Id.



6
  In support of this proposition, Wilkinson relies on Spence, wherein this Court
found that when a Complaint is dismissed under Rule 12(b)(6), "the dismissal
generally is without prejudice" and "[t]he plaintiff in most cases should be given an
opportunity to file and serve an amended complaint." Spence, 368 S.C. at 129, 628
S.E.2d at 881. The Court explained:

             When a plaintiff is not given the opportunity to file and serve
      an amended complaint, but is left with no choice but to appeal after
      dismissal of her case with prejudice, an appellate court which affirms
      the dismissal may modify the lower court's order to find the dismissal
      is without prejudice. When the statute of limitations has expired, the
      appellate court may in its discretion impose a reasonable period of
      time in which to amend the complaint. An appellate court should
      follow this procedure when the plaintiff presents additional factual
      allegations or a different theory of recovery which, taken as true in a
      well-pleaded complaint, may state a claim upon which relief may be
      granted.

Id. at 130, 628 S.E.2d at 881-82 (emphasis added).
       In the instant case, Wilkinson filed the NOI on September 1, 2011 in
compliance with section 15-79-125(A). S.C. Code Ann. § 15-79-125(A) (Supp.
2013). Because the statute of limitations was due to expire within a short period of
time, Wilkinson did not include an expert witness affidavit with the NOI, but stated
that she would file one at a later date. Pursuant to section 15-36-100(C)(1),
Wilkinson had an additional forty-five days to supplement her NOI with an expert
affidavit. Id. § 15-36-100(C)(1). Wilkinson acted within the statutorily designated
time period as she filed the affidavit of Dr. Newkirk on October 5, 2011. As a
result, Wilkinson's properly filed NOI tolled "all applicable statutes of limitations"
pursuant to section 15-79-125(A). Accordingly, the circuit court erred in finding
that Wilkinson's NOI was not sufficient to toll the statute of limitations.

        After the NOI was properly filed, the parties strictly adhered to the pre-
litigation procedures outlined in section 15-79-125. Specifically, the parties
engaged in discovery and participated in mediation within the statutorily mandated
120-day time period. Id. § 15-79-125(B) ("After the Notice of Intent to File Suit is
filed and served, all named parties may subpoena medical records and other
documents potentially related to the medical malpractice claim pursuant to the
rules governing the service and enforcement of subpoenas outlined in the South
Carolina Rules of Civil Procedure. Upon leave of court, the named parties also
may take depositions pursuant to the rules governing discovery outlined in the
South Carolina Rules of Civil Procedure."); id. § 15-79-125(C) ("Within ninety
days and no later than one hundred twenty days from the service of the Notice of
Intent to File Suit, the parties shall participate in a mediation conference unless an
extension for no more than sixty days is granted by the court based upon a finding
of good cause.").

        Following the failed mediation attempt on January 20, 2012, Wilkinson
initiated her civil action by filing a timely summons and complaint on January 25,
2012, as required by section 15-79-125(E). Id. § 15-79-125(E) ("If the matter
cannot be resolved through mediation, the plaintiff may initiate the civil action by
filing a summons and complaint pursuant to the South Carolina Rules of Civil
Procedure. The action must be filed: (1) within sixty days after the mediator
determines that the mediation is not viable, that an impasse exists, or that the
mediation should end; or (2) prior to expiration of the statute of limitations,
whichever is later." (emphasis added)). Consequently, Wilkinson complied with
the pre-litigation requirements and timely initiated her civil action.
C.    Dismissal of Civil Action with Prejudice

      Having found that Wilkinson timely initiated her civil action, the question
becomes whether the Complaint was sufficient to comply with the requirements of
section 15-36-100 as Wilkinson never supplemented this pleading with an expert
affidavit.

       As a threshold matter, we disagree with any contention that the clerk of
court's assignment of separate Common Pleas case numbers to the NOI and the
Complaint converted Wilkinson's medical malpractice case into two civil cases that
required two expert affidavits. The assignment of a different case number to the
pre-litigation pleadings and the litigation pleadings is of no consequence because
they both comprise a single medical malpractice claim. See Fisher v. Pelstring,
817 F. Supp. 2d 791, 807 n.8 (D.S.C. 2011) (analyzing procedures for initiating
medical malpractice claims and stating "[s]ection 15-79-125 also does not include
any language indicating that the case number under which a Notice of Intent is
served on a defendant must be the same as the case number assigned to the
complaint served on that defendant if a civil action is ultimately initiated").

      Once Wilkinson initiated the civil action, the proceedings continued to be
governed by section 15-36-100. Significantly, section 15-36-100(B) states:

      Except as provided in Section 15-79-125, in an action for damages
      alleging professional negligence against a professional licensed by or
      registered with the State of South Carolina and listed in subsection
      (G) or against any licensed health care facility alleged to be liable
      based upon the action or inaction of a health care professional
      licensed by the State of South Carolina and listed in subsection (G),
      the plaintiff must file as part of the complaint an affidavit of an expert
      witness which must specify at least one negligent act or omission
      claimed to exist and the factual basis for each claim based on the
      available evidence at the time of the filing of the affidavit.

S.C. Code Ann. § 15-36-100(B) (Supp. 2013) (emphasis added). As we interpret
this provision, the plain language of the first sentence expressly exempts a medical
malpractice claimant from filing a second expert affidavit as one has already been
filed with the NOI pursuant to section 15-79-125.

       Such a construction harmonizes the two statutes and is consistent with the
intent of the legislature to create a unique pre-litigation period of discovery and
mandatory mediation via section 15-79-125 in order to filter out frivolous claims at
the earliest stage in medical malpractice cases. However, this procedure does not
create two separate cases. Rather, the plaintiff must properly initiate the claim
with the NOI and attempt to resolve the case within a short timeframe. If the
parties fail to resolve the case through mediation, the case almost immediately
progresses as a customary professional negligence action. Thus, to require a
second expert affidavit at the litigation stage in the proceeding leads to an absurd
result as the plaintiff's claim has not changed during the pre-litigation proceedings.
This conclusion, however, does not obviate the need for a plaintiff to offer
additional expert testimony as it may be necessary to withstand a defendant's
motion for summary judgment or to support the claim at trial.7

        Finally, such an interpretation is consistent with the Court's decisions to
permit medical malpractice cases to proceed on the merits rather than to affirm
unwarranted dismissals based on technical noncompliance with the medical
malpractice statutes. See Ross v. Waccamaw Cmty. Hosp., 404 S.C. 56, 744 S.E.2d
547 (2013) (concluding that failure to timely complete the pre-litigation mediation
process as required by section 15-79-125 does not divest the trial court of subject
matter jurisdiction or mandate dismissal); Grier v. AMISUB of S.C., Inc., 397 S.C.
532, 725 S.E.2d 693 (2012) (holding that the pre-litigation expert affidavit, which
is filed pursuant to section 15-79-125, must specify at least one negligent act or
omission and the factual basis for each claim, but does not need to include an
opinion as to proximate cause and, therefore, medical malpractice claimant's case
could proceed as the pre-litigation affidavit was sufficient).

       Based on the foregoing, we hold the circuit court erred in granting
Respondents' motions to dismiss as Wilkinson's Complaint was timely and
sufficient to properly initiate a civil action for medical malpractice. In view of our
decision, it is unnecessary to address Wilkinson's remaining argument that she
should be permitted to supplement her Complaint with an expert affidavit based on
Spence. See Futch v McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613,

7
  Although East Cooper references decisions from other jurisdictions to support
the contention that a second affidavit is required, its reliance on these cases is
misplaced as the underlying state statutes are distinctly different from our state's
medical malpractice statutes. Moreover, our research did not reveal any state
statutes that were identical to those in this state. Thus, even though cases from
other jurisdictions involving medical malpractice may provide guidance as to
policy or theory, the text of the underlying statutes is not similar enough to be
dispositive in the instant case.
518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining
issues when its determination of a prior issue is dispositive of the appeal).

                                  IV.    Conclusion

      Having reversed Ranucci I, we hold Wilkinson could invoke section 15-36-
100(C)(1), which extended the time for filing the expert witness affidavit with her
NOI and tolled the statute of limitations. As a result, Wilkinson timely filed her
Complaint. Moreover, Wilkinson was not required to file a second expert witness
affidavit in order to properly initiate her civil action because the affidavit filed with
her NOI was sufficient for statutory compliance. Accordingly, we reverse the
decision of the circuit court and remand the case for further proceedings.

      REVERSED AND REMANDED.

      TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J.,
dissenting in a separate opinion.
JUSTICE PLEICONES: I respectfully dissent. Appellant failed to file an expert
witness affidavit contemporaneously with her Notice of Intent to File Suit as
mandated by S.C. Code Ann. § 15-79-125(A) (Supp. 2013). I would therefore
affirm the circuit court's decision. See Ranucci v. Crain, Op. No. 27422 (S.C. Sup.
Ct. filed July 23, 2014) (Pleicones, J., dissenting).
