Would South Carolina owe money if its Patient's Compensation Fund became insolvent through mismanagement?

Plain-English summary

In 1999, South Carolina's Legislative Audit Council asked whether the state could be liable if the Patient's Compensation Fund became insolvent because of mismanagement or negligence. An assistant deputy attorney general answered that the state should not be liable under the fund's statutes, sovereign immunity, and the Tort Claims Act defenses he identified.

He did not make a final liability determination. The letter said a claimant could file suit, only a court could decide liability, and an Attorney General opinion could not resolve whether specific facts might create an exception. It also suggested that explicit statutory immunity for claims beyond the fund would make the state's position clearer. The letter was an informal opinion and relied on a related earlier opinion rather than repeating its full analysis.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the opinion conclude the state would pay if the fund ran out of money? A: No. The author thought statutory terms and immunity defenses meant the state should not be liable.

Q: Was that a final ruling on an insolvency lawsuit?
A: No. The letter said only a court could decide liability, and the author could not determine the effect of particular facts in an opinion.

Q: Why did the author mention further legislation?
A: He said an explicit statutory statement barring recovery beyond the fund and specified claims would further ensure recognition of the state's immunity.

Background and legal framework

The audit council was reviewing the Patient's Compensation Fund and followed up on an earlier Attorney General letter. This opinion pointed to the fund provisions, sovereign immunity, and the Tort Claims Act, while leaving fact-specific and ultimate liability issues to courts. It also said opinions could not serve as risk-management determinations.

Citations and references

• §38-79-410 et seq.: Patient's Compensation Fund provisions identified in the opinion.
• Tort Claims Act and sovereign-immunity defenses: cited as the author's grounds for his qualified conclusion.

Official title

Concerning whether the State could be held liable if the Patient’s Compensation Fund became insolvent due to mismanagement or negligence.

Requester

George L. Schroeder, Director, Legislative Audit Council

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-22-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99nov-22-schroeder.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

November 22, 1999

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Mr. George L. Schroeder
Director
Legislative Audit Council
400 Gervais St.
Columbia, SC 29201
Dear Mr. Schroeder:
You have requested the advice of this Office as to questions regarding the Patient's Compensation Fund which your agency is currently reviewing. See §38-79-410, et seq (1989). As you reference in your letter, I previously addressed related questions in an informal opinion dated July 20, 1999. Your additional question is whether the State could be held liable ifthe Fund became insolvent due to mismanagement or negligence.

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I believe that the response that I gave to your first question in the July 20 opinion applies to this question also. The State should not be liable under the terms of statutory provisions for the Fund and the defenses of sovereign immunity and underthe Tort Claims Act. See§§ 15-78-20 and 15-7860 (Supp. 1998); §§ 38-79-420 (Supp. 1998). Of course, anyone can file a suit if he or she is so motivated, and only a court can ultimately determine liability under the circumstances that you mentioned. I also cannot determine, within the scope of an opinion, whether specific factual circumstances within those that you have suggested might create a liability. You may wish to contact the staff members of the Budget and Control Board who deal with tort claims issues and may be of some guidance. Opinions of this Office cannot function as formats to address risk management issues. Finally, as noted in the previous informal opinion, having specific statutory provisions spelling out that the State is immune from suit for recovery of any money in excess of the Fund and is immune from particular claims would further ensure that the State's immunity is recognized. I hope that this information is of assistance. This letter is an informal opinion. It has been written by the designated Assistant Deputy Attorney General and represents the opinion of the

Mr. George L. Schroeder
November 22, 1999
Page 2
undersigned attorney as to the specific questions asked. It has not, however, been personally reviewed by the Attorney General nor officially published in the manner of a formal opinion. If you have further questions, please let me know.

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