Attorneydiction.com,- The guardian of a young child who suffered severe injuries at the hands of his father will be able to move ahead with a lawsuit against the South Carolina Department of Social Services after the state’s Court of Appeals unanimously found that a jury could reasonably infer that the department failed to exercise the “slight care” required to defeat a lawsuit alleging gross negligence, and that its failure to do so proximately caused the boy’s injuries.
The July 21 decision overturns a York County Circuit Court ruling granting summary judgment for DSS. The appeals court said that the agency may have been grossly negligent by failing to timely notify law enforcement and appropriately investigate the possible abuse.
“Because the evidence in this case supports the reasonable inference that DSS failed to exercise slight care from the outset of its investigation regarding Child’s injuries, the circuit court erred in granting summary judgment,” Judge Jeff McDonald wrote.
Abuse ‘should’ve been caught’
In late 2009, 12-week-old “Owen C.” visited four pediatric clinics and hospitals within a week. His teenaged parents claimed several odd behaviors and symptoms—he slept more, screamed more, and became unresponsive at one point. Doctors detected two subdural hematomas, and although Owen’s physician offered no opinion regarding the cause of the injuries, a hospital social worker alerted DSS.
Owen’s parents entered a voluntary safety plan and his case was assigned to DSS caseworker Dirvondra Hill and her supervisor, Krista Hinnant. Hospital social workers told Hill and Hinnant that while they couldn’t rule out accidental or non-accidental trauma, they were primarily concerned about inadequate supervision.
State law mandates that any indication of criminal neglect or abuse must be reported to law enforcement within 24 hours. After meeting with the York County DSS legal department, Hinnant instructed Hill to contact authorities. But because the hospital made no determination of abuse, Hinnant recommended that Owen be released to his family.
Hill tried to meet with Owen’s parents over the next several days but didn’t notify law enforcement until 10 days after Owen’s release. A police investigator said that the DSS social worker he spoke with—another supervisor—said that she chose not to call law enforcement because several doctors found nothing wrong with Owen, and that he was safe at the hospital.
After visiting with the family, Hill noted appropriate behavior inside the home. But a few weeks later, Owen was hospitalized again with bruising, bleeding behind the eye, and up to five new hematomas. Ultimately, the father admitted to harming Owen and received an eight-year prison sentence.
Randy Hood of McGowan Hood & Felder in Rock Hill is one of several attorneys representing Owen’s guardian ad litem. Hood said that the abuse should’ve been caught early on.
“This is about a perfect child who is catastrophically injured, non-communicative, and will be institutionalized his entire life,” Hood said. “He will never have a chance at life because he wasn’t protected by the people who were supposed to protect him.”
Sufficient signs were there
In the complaint, Owen’s guardian claimed that DSS, law enforcement, and York County were grossly negligent for failing to properly investigate the potential abuse. DSS claimed protection under the state’s Tort Claims Act, which would shield the agency from liability in the absence of gross negligence.
What constitutes gross negligence is normally a question of law and fact. The state’s Supreme Court had previously held in its 2015 ruling in Bass v. South Carolina Department of Social Services that DSS is required to exercise at least “slight care” during each phase of its investigation.
“Hill failed to make the law enforcement referral for ten days, despite her supervisor’s earlier specific instruction to make the referral. While this alone might not establish a failure to exercise slight care, other evidence in the record raises concerns that present questions for a jury with regard to whether DSS exercised slight care in investigating Child’s abuse,” McDonald wrote.
DSS argued that summary judgment would also be warranted based on the circuit court’s finding that its failures weren’t the proximate cause of the boy’s injuries because even though it didn’t timely notify law enforcement, those authorities still had an opportunity to investigate and took no action until after the boy’s final injury.
The appeals court found this conclusion problematic, considering that DSS social workers minimized the possibility of abuse, despite concerns from hospital staff regarding Owen’s prior hospital visits and how hematomas might indicate non-accidental trauma.
The court also expressed concern over Hill’s record keeping. After one home visit, Hill noted that Owen was “vibrant,” “laughing,” and “smiling.” But the court said that these notes weren’t entered until three weeks after the visit, and on the day after DSS learned that Owen was back in the hospital with new injuries. Discrepancies with other case notes raised additional “questions of fact and credibility necessitating review by a jury,” Carpenter wrote.
Whitney Harrison of McGowan Hood & Felder’s Columbia office said that the ruling “transcends Owen’s case,” making clear that Bass establishes that DSS must meet the standard of care in every undertaking, not only at some point while rendering services.
“By acknowledging that the standard of care has to be met at each undertaking, the court has made a necessary acknowledgment that slight care must exist at all times, thereby ensuring each case and occurrence is weighed separately by examining the specific circumstances and facts,” Harrison said.
John Frawley of Lexington represented DSS. Frawley declined to comment on the ongoing litigation.
The 13-page decision is Rainey v. South Carolina Department of Social Services (Lawyers Weekly No. 011-053-21). The full text of the opinion is available online at sclawyersweekly.com.