The South Carolina Department of Disabilities and Special Needs has asked the state Court of Appeals to reconsider a decision that gives disabled residents the ability to extend the statute of limitations on a claim for up to five years, even when they have guardians managing their affairs.

DDSN’s attorneys, William Davidson and Kenneth Woodington of Davidson & Lindemann in Columbia, argue in the agency’s rehearing petition that the court’s Nov. 8 opinion “overlooked the unwarranted prejudice to defendants that occurs when plaintiffs such as this one are given as many as seven or eight years in which to file a claim.”

The decision answered a novel question — whether the tolling statute applied when a disabled claimant had a guardian — and also clarified the definition of insanity under the statute. But the Court of Appeals left the opinion unpublished.

Now, the Columbia attorney behind the suit, Patricia Harrison, has asked the court to publish the decision, which centers on DDSN’s treatment of a severely disabled man, Edward Mims, who died in 2015.

“Leaving the issue of whether the appointment of a guardian may terminate rights under the tolling statute open to future litigation is likely to delay judicial relief for other intellectually disabled persons who have been and will continue to be subjected to abuse and neglect, and even worse, it may cause defendants to seek the appointment of a ‘friendly guardian’ to prevent the intellectually disabled person from enforcing his right to judicial relief,” Harrison wrote in the motion to publish.

Mims mother has accused DDSN of neglecting her son and subjecting him to repeated abuse while he was committed to two residential care facilities. She voluntarily committed Mims to full-time DDSN care in 1999, because she was too ill to care for her son. After learning in 2001 that Mims had been beaten while in DDSN’s care, she spent four years trying to regain guardianship of her son, and was finally successful in 2005, after he was sent to the hospital with a lacerated penis. The cause of the injury remains unknown, but Harrison said she does not believe that it was self-inflicted.

Mims’ mother first filed suit against DDSN in 2007, but she backed off and never served the complaint because she feared that the state would retaliate by taking away Mims’ in-home caregiver, according to Harrison. Mims’ mother filed an amended complaint in 2008, after Harrison said the threat of retaliation had subsided.

DDSN contends in its Nov. 21 rehearing petition that the case “represents a paradigm example of a situation in which a guardian charged with protection of the rights of a disabled person slept on those rights.”

“The Defendants should not be penalized by having to defend these extremely stale claims in light of this years-long inaction by the guardian and her counsel, especially when there was even a false start in the form of a case filed and inexplicably never served for a year,” Davidson and Woodington wrote in the petition. They stressed that Mims had a guardian and an attorney during the regular three-year statutory period, but waited until after that window had closed to sue DDSN.

“As a result, there is nothing about Plaintiff’s situation that would require relaxing the rules,” they wrote. “Moreover, even a person under legal disability is not entitled to argue unpreserved issues when his interests have been represented at all times by counsel who could have raised the issues.”

They also assert that the Court of Appeals erred in allowing the case to move forward because the complaint failed to show that DDSN was liable for Mims’ “medical encounters,” which also allegedly included ant bites, a bruised groin, an injured hand, severe vomiting, elevated blood pressure and weight loss.  

“In effect, the opinion holds that the mere existence of a medical encounter renders the Defendants strictly liable, or liable as a matter of res ipsa loquitor, for the occurrence of the condition that led to the encounter,” they wrote. “This is clearly not the law.”

Follow Phillip Bantz on Twitter @SCLWBantz

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