The South Carolina Court of Appeals has given disabled residents throughout the state the gift of time by ruling that their disability does not cease in the eyes of the law when they are appointed a legal guardian.

The novel decision means that the disabled can take advantage of a state law that allows for the tolling of the statute of limitations for up to five years, even when they have a guardian managing their affairs.

Despite the fact that the Nov. 8 opinion answered an issue of first impression and addressed another murky issue by clarifying the definition of insanity in the tolling statute, the appellate court chose to leave the decision unpublished.

“It would have been nice if this had been available in a precedent-setting decision rather than not,” said David Zoellner, managing attorney for Protection and Advocacy for People with Disabilities, a non-profit organization based in Charleston.

Still, he believed that the case was “good for clearing up several issues that can affect people with disabilities.”

The decision comes at a tumultuous time for the defendant, the South Carolina Department of Disabilities and Special Needs. Executive Director Beverly Buscemi recently announced her Dec. 8 resignation after eight years with the agency. The announcement came as the House Legislative Oversight Committee and a Senate oversight panel wrapped up separate investigations into DDSN.

“We’re at a crossroads where the powers that be can determine to continue to operate the agency the way it’s been operated, or they can make changes,” said Columbia lawyer Patricia Harrison.

She is the attorney for the personal representative for the estate of the severely disabled man at the center of the case at hand, Edward Mims, who died in 2015 and whose mother sued DDSN for allegedly neglecting her son and subjecting him to years of abuse.

Courts split over tolling question

Richland County Circuit Judge Thomas Cooper Jr. had dismissed the suit, finding that the three-year statute of limitations barred Mims’ claims for negligence and civil rights violations. He based his ruling on a determination that Mims did not qualify as “insane,” which the state law requires for tolling eligibility, and also that his legal disability ceased when his mother was appointed as his guardian.

The Court of Appeals noted in its per curiam opinion that the “question of whether a disability ceases when a legal guardian is appointed is novel in South Carolina, and there is a split in authority among jurisdictions with similar tolling statutes.”

According to Harrison, the majority of jurisdictions that have addressed the issue have decided that the appointment of a guardian does not affect tolling eligibility. South Carolina has joined that majority.

“This decision protects people with disabilities,” Harrison said. “It would have been terrible if it had come out the other way.”

The appellate court also found that Mims met the definition of insanity, for purposes of the tolling statute, as the “evidence presented to the circuit court demonstrates Mims was never able to manage his own affairs or protect his rights, and Mims required consistent one-on-one care to accomplish daily tasks of living.”

The Court of Appeals went on to reverse Cooper’s ruling that tolling eligibility hinges on whether the court has declared a person legally incapacitated before they had a legal claim. Cooper’s decision that such an order was necessary to trigger the tolling statute was “contrary to the general policy in South Carolina of affording special protection to the mentally disabled, especially in civil legal proceedings,” the appellate court found.

Allegations of years of abuse

Mims spent the first 27 years of his life living with his mother. But in 1999 she became too ill to care for him and he was voluntarily sent to a DDSN residential care facility called Clusters, where he was neglected and an employee beat him, according to his suit. He also developed bruises on his groin, had severe vomiting and lost nearly 30 pounds.

His mother requested that he be returned to her care, but DDSN successfully petitioned the probate court to have Mims legally committed. He was later transferred to another DDSN facility called Kensington, where he was treated for an injured hand, elevated blood pressure and ant bites.

After one of Mims’ co-residents died from choking on insufficiently pureed food, the federal Centers for Medicare & Medicaid Services, which had already found in an earlier investigation that the facility was failing to properly train its staff, terminated Kensington’s certification. DDSN responded by sending some residents to other facilities. But the agency kept Mims at Kensington, Harrison said.

Mims’ mother was only able to regain guardianship of him in 2005, after he was sent to the emergency room with a laceration on the underside of his penis that required seven sutures to close. An internal investigation at Kensington concluded that the cause of the injury was “unexplained.”

Mims had been wearing zipperless sweatpants and did not have any skin under his fingernails, which Harrison says proves that he did not injure himself. She added that Mims had no unexplained injuries during the decade he spent at home with his mother before his death in 2015. He was 43.

‘Fear of retaliation’

His mother filed suit against DDSN in 2007, but then she backed away and never served the complaint.

Her decision was based on her fear that the state would take away Mims’ in-home caregiver, according to Harrison. She said an employee in the governor’s office had accused the caregiver of neglecting Mims after his mother sued.

“We didn’t serve it until that [the accusation] got resolved,” she said. “The reason it wasn’t served was fear of retaliation and losing that caregiver.”

An attorney for DDSN, Kenneth Woodington of Davidson & Lindemann in Columbia, declined an interview request, stating in an email that his client does not discuss pending litigation.

The 12-page decision is Estate of Mims v. South Carolina Department of Disabilities & Special Needs (Lawyers Weekly No. 011-076-17). An opinion digest is available at

Follow Phillip Bantz on Twitter @SCLWBantz

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