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Estate of Mims v. The South Carolina Department of Disabilities

Court of Appeals of South Carolina

November 8, 2017

Estate of Edward James Mims, Laura M. Cole, Personal Representative, Appellant,
The South Carolina Department of Disabilities and Special Needs, Kathi Lacy, and Stan Butkus, Respondents. Appellate Case No. 2014-001373

          Heard June 8, 2017

          Withdrawn, Substituted and Refiled February 21, 2018

         Appeal From Richland County G. Thomas Cooper, Jr., Circuit Court Judge.

          Patricia Logan Harrison, of Columbia, for Appellant.

          William H. Davidson, II and Kenneth P. Woodington, of Davidson & Lindemann, PA, of Columbia, both for Respondents.

          HILL, J.

         Edward James Mims, a severely disabled adult, [1] sued Respondents South Carolina Department of Disabilities and Special Needs (DDSN) and two of DDSN's employees, Kathy Lacy and Stan Butkus, alleging violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act; negligent supervision, gross negligence, and negligence; and civil rights violations under 42 U.S.C § 1983. After a hearing, the circuit court granted Respondents' motion for summary judgment. We affirm in part, reverse in part, and remand to the circuit court.


         Like the circuit court, we are required to view the record in the light most favorable to Mims, construing all ambiguities and inferences in his favor. Simmons v. Berkeley Elec. Coop., Inc., 419 S.C. 223, 228, 797 S.E.2d 387, 390 (2016). In light of this standard, the facts presented at summary judgment are as follows:

         Mims was born prematurely and, as a result, suffered both physical and mental disabilities. At age twenty-one, an evaluation found him to have the cognitive ability of a twenty-month-old child. During the first twenty-seven years of his life, Mims lived with and was cared for by his mother, Margaret Mims. In 1999, Ms. Mims fell ill, and Mims was voluntarily committed to full-time DDSN care in a residential facility known as "Clusters." While at Clusters, Mims experienced several ailments, including bruises on his groin, vomiting, and a twenty-eight pound weight loss. In 2000, Mims was beaten by a Clusters employee. Several months after the beating, Ms. Mims requested Mims be returned to her care. In response, DDSN petitioned the probate court to have Mims committed to the residential facility. After a hearing, the probate court judicially admitted Mims to DDSN's care, concluding he was profoundly mentally retarded with complex medical needs.[2] After the Clusters employee was arrested and charged with assault and battery as a result of beating Mims, Ms. Mims wrote a letter to DDSN again requesting he be returned to her care.

         In response, Ms. Mims received a letter from DDSN's Director of Government and Community Relations that stated:

It is obvious Ms. Mims, that you love your son very much and took care of him in your home for many years. We understand that you wish it were possible for him to live at home again. All of us agree that one single person is not enough people to provide care for [Mims]. It is impossible because of his conditions and the fact that several different people have to be awake and around him all the time.

         In January 2002, Mims was repeatedly hit by another resident with a belt. The State Long Term Care Ombudsman reviewed the incident and concluded that:

It is substantiated that resident-to-resident abuse occurred. The [Omnibus Adult Protection Act] states that physical abuse does not include altercations or acts of assault between vulnerable adults. However, the incident should have been reported to the Ombudsman because of its serious nature. Although the Ombudsman Program does not have the statutory authority to investigate resident-to-resident abuse, it would investigate to determine if adequate supervision was provided. Lack of Supervision was also substantiated based on the above findings.

         In March 2002, Mims was transferred from Clusters to another residential facility under contract with DDSN called "Kensington." In 2003, the Department of Health and Human Services Centers for Medicare and Medicaid Services (CMS) investigated Clusters and found the facility failed to consistently provide the staffing or training necessary to protect residents.

         Between 2002 and 2004, Mims was treated for a swollen and bruised hand, elevated blood pressure, suspected pain, and an incident where he was discovered to have a large number of ant bites.[3] In late 2004, one of Mims' co-residents died after choking on insufficiently pureed food, precipitating another investigation by CMS. In April 2005, CMS terminated Kensington's certification. As a result, some of Kensington's residents were relocated to other facilities; however, DDSN did not relocate Mims.

         A month later, on May 27, 2005, Mims presented to the emergency room with a four centimeter laceration to the undersurface of his penis. Although the emergency-room doctor's notes described the injury as a "[s]uperficial laceration to penis, " the laceration was repaired with seven sutures. An internal investigation of the injury concluded "the origin remains unexplained." Upon learning of the injury, Ms. Mims initiated proceedings to become Mims' guardian.

         An emergency hearing was held on Ms. Mims' petition for guardianship. Based on evidence presented indicating Kensington was decertified in April 2005 and Mims sustained a "serious unexplained injury" on May 27, 2005, the probate court appointed Ms. Mims as her son's guardian and custodian.

         On May 29, 2007, Ms. Mims filed a complaint on Mims' behalf, suing DDSN for various torts and statutory violations. However, that complaint was never served. On May 7, 2008, Mims filed an amended complaint, adding Respondents Lacy and Butkus to the lawsuit and pleading the current allegations. The amended complaint was served on May 12, 2008.

         Respondents filed a motion to dismiss for untimely service, which was originally denied but then granted after a hearing on the motion to reconsider. Mims ex rel. Mims v. Babcock Ctr., Inc., 399 S.C. 341, 343-44, 732 S.E.2d 395, 396 (2012). Mims appealed the dismissal, and the South Carolina Supreme Court found the amended complaint was timely served. Id. (holding Rule 15(a), SCRCP, allows for ...

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