Linda Johnson, as Personal Representative of the Estate of Inez Roberts, Petitioner,
Heritage Healthcare of Estill, LLC, d/b/a Heritage of the Low country and/or Uni-Health Post Acute Network of the Lowcountry, United Clinical Services, Inc., United Rehab, Inc., And UHS-Pruitt Corporation, Respondents. Appellate Case No. 2014-002502
November 18, 2015
From Hampton County Carmen T. Mullen, Circuit Court Judge
Bright Matthews, of Bright Matthews Law Firm, LLC, of
Walterboro, Lee D. Cope, of Hampton, and Matthew Vernon
Creech, of Ridgeland, both of Peters Murdaugh Parker Eltzroth
& Detrick, PA, and Charles J. McCutchen, of Lanier &
Burroughs, LLC, of Orangeburg, for Petitioner.
Monteith P. Todd, Robert E. Horner, and J. Michael
Montgomery, all of Sowell Gray Stepp & Laffitte, LLC, of
Columbia, and Joshua S.Whitley, of Smyth Whitley, LLC, of
Charleston, W. Jerad Rissler and Jason E. Bring, both of
Arnall Golden Gregory, LLP, of Atlanta, Georgia, for
Johnson asks this Court to review the court of appeals'
decision in Johnson v. Heritage Healthcare of
Estill, Op. No. 2014-UP-318 (S.C. Ct. App. filed Aug. 6,
2014), reversing the circuit court's finding that
Heritage Healthcare of Estill (HHE) waived its right to
arbitrate the claims between it and Johnson. We granted
certiorari and now reverse.
2007, Johnson enrolled her mother, Inez Roberts (Mrs.
Roberts), in HHE to receive nursing home care. Johnson held a
general power of attorney for Mrs. Roberts, and as such,
signed an arbitration agreement with HHE on her mother's
behalf upon Mrs. Roberts's admission to
time, Mrs. Roberts was eighty-five years old and enjoyed good
health. However, within six months of entering HHE, she
developed severe pressure ulcers, resulting in the amputation
of her leg and ultimately, her death in 2009.
to Mrs. Roberts's death, in August 2008, Johnson
requested HHE allow her access to Mrs. Roberts's medical
records, but HHE refused, citing privacy provisions in the
Health Insurance Portability and Accountability Act (HIPAA).
Johnson then filed an ex parte motion for a temporary
restraining order (TRO), seeking to obtain a copy of Mrs.
Roberts's medical records from HHE and to restrain HHE
from changing, altering, or destroying the records. The
circuit court granted the TRO, and HHE filed a motion to
dissolve the order, again citing HIPAA's privacy
at Johnson's request, the circuit court appointed her
Mrs. Roberts's guardian ad litem (GAL) in order
to pacify HHE's HIPAA concerns. However, HHE still
refused to produce the records. The court again ordered HHE
to produce the records, and HHE appealed. During the pendency
of the appeal, Mrs. Roberts died, and Johnson became her
personal representative. HHE then produced the records, and
the parties dismissed the appeal by consent.
months after obtaining the records, in August 2010, Johnson
filed a notice of intent (NOI) for a wrongful death and
survival action against HHE. In October 2010, following an
impasse at pre-suit mediation, Johnson filed her complaint.
In November 2010, HHE filed its answer and asserted
arbitration as one of several defenses, but did not move to
compel arbitration at that time. Instead, HHE filed
arbitration-related discovery requests on Johnson.
December 2010, Johnson moved to strike HHE's arbitration
defenses, arguing that HHE waived its right to enforce the
arbitration agreement. Specifically, Johnson argued that
although the TRO proceedings fell within the scope of the
arbitration agreement, HHE did not move to compel arbitration
during those proceedings, the GAL proceedings, or the
subsequent appeal. Moreover, Johnson contended that HHE
participated in pre-suit mediation, responded to
Johnson's discovery requests, and served discovery
requests on Johnson in return, thus availing itself of the
response, HHE speculated that if it moved to compel
arbitration at that time, Johnson would raise defenses to
arbitration. HHE therefore requested "a small amount of
time to conduct discovery" to determine in advance the
defenses Johnson intended to raise, and to obtain information
through discovery that would allow HHE to better defend
March 2011, the circuit court denied Johnson's motion to
strike, but found that Johnson could re-raise the waiver
issue if, ...