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Rock Hill Woman Smothered to Death By Nursing Home Employee

A Rock Hill elderly woman was killed in November 2011, when her assisted living care nurse smothered the victim to death. The employee’s actions were discovered when she attempted to steal and cash checks from the victim’s banking account.

The 30-year-old former assisted living employee was charged with murder, and sentenced to life in prison this past Thursday. The 82-year-old victim was found dead in her shower at the Oak Bridge Terrace Assisted Residences, on the campus of Park Pointe Village Assisted Living facility in Rock Hill, SC. It was reported by the woman’s family that the body of the deceased was “badly bruised.”

An investigation discovered that the Rock Hill Police had been at the Park Pointe Village the day before the victim’s death, when it was reported that the victim’s checkbook had been stolen.The victim told the Rock Hill police that four checks had been written to the defendant that did not match her signature, totaling to $1,280. The checks were written between October 12 and November 1 of 2011.

The defendant had access to all of the assisted living residents, but was not at work at the time of the complaint, and was since suspended from her job. Later, it was discovered that the defendant had gotten another employee to let her into the facility when she murdered the victim. The defendant reportedly put a shower cap of the victim’s head, put her into the shower while running, and suffocated her.

The body was found around 6:30 a.m., when CPR was attempted, but sadly failed.

The victim’s family is suing the assisted living home for the wrongful death of their loved one.

Elder abuse is a crime that is on the rise due to the victim’s vulnerability. If you suspect something is not quite right, call us and we will help you find out if you are worried about nothing or if something really is wrong. If your loved one has already been injured or worse, call us immediately. Mr. Reeves stands ready to bring his medical background and years of nursing home litigation experience to your family. First, we want answers. And then, we want justice. Call the law offices of Reeves, Aiken, and Hightower today at 704-499-9000 or 877-374-5999 toll-free. 

Rock Hill Woman’s Estate Sues Assisted Living Home for Wrongful Death

The estate of a woman killed last year at a Rock Hill Assisted living home is suing the facility and several of its employees, alleging that the crime could have been prevented.  Pauline Cook, 82, was found dead in her shower the day after she reported to staff members of the home and police that someone had been forging her checks.

Braquette Walton, a 30-year-old nurse’s assistant who eventually confessed to the crime, was arrested in connection with the killing.  Walton was charged with murder, abuse and neglect of a vulnerable adult resulting in death, burglary and forgery.

Other employees being implicated in connection with the crime allegedly knew of Cook’s suspicions of the forgery and took no immediate actions to prevent the criminal conduct.  At the time of the killing Walton was not scheduled to work, and therefore, had no authorization and was not permitted to be on the premises of the facility.  Nevertheless, Walton managed to bypass several security measures, wrongfully enter the home, and sneak into the victim’s room unnoticed.  There, a violent struggle ensued and Walton ultimately smothered the woman death.  Cook’s lifeless body was then dragged to the shower in an attempt to make it appear as though she accidentally fell while bathing.

Cook’s estate is seeking compensation and punitive damages for wrongful death, negligence and wonton and reckless misconduct.  Walton is being held at Moss Justice Center in York and faces 30 years to life in prison for the murder charge alone.

South Carolina Attorneys: Reeves, Aiken, and Hightower, LLP

If the unthinkable happens in your life, call the experienced wrongful death attorneys of Reeves, Aiken & Hightower LLP. Our seasoned litigators have over 75 years combined trial experience. Our team of personal injury attorneys include former insurance defense lawyers, a former Registered Nurse (RN), and former criminal prosecutor. We can investigate all aspects of a serious accident and hold all parties accountable for your loss. Call us today and speak directly with one of our lawyers at 704-499-9000 or 877-374-5999 toll free. We have offices in Charlotte and throughout South Carolina. We would be honored to have an opportunity to help you and your family get through this most difficult time in your lives.

Common Signs of Nursing Home Abuse – SC Nursing Home Negligence

It is a scary prospect putting one’s loved ones in a nursing home, trusting their care to others.  It is even worse when the staff you trust could be abusing him or her.  How would you know?  You can’t always be there with them.  Listed below, for your convenience and comfort, are the most common signs of nursing home neglect.

Signs of Physical Abuse

  • Unexplained injuries
  • Frequent falls
  • Wounds, cuts, or bruises – open or undressed
  • Improper dosing or dispensing of medication
  • Unreasonable or forceful restraint – either chemical restraint or physical restraint
  • Deprivation of food and water
  • Malnourishment
  • Dehydration
  • and in the extreme actual assault or rape

Signs of Emotional, Mental, or Verbal Abuse

  • Intimidation by Staff
  • Changes in Behavior
  • Changes in Personality
  • Unusual behavior
  • Becoming Withdrawn or Uncommunicative
  • Agitation
  • Becoming Newly Overemotional
  • Threatening, humiliating, insulting, or ignoring friends and family

Signs of Neglect

  • Bed sores (decubitus ulcers or pressure ulcers)
  • Infections
  • Failure to provide emergency care
  • Poor hygiene – when staff refuses to help with personal hygiene
  • Safety and health hazards that staff refuse to solve
  • Poor sanitary conditions in room
  • Poor access to medical services
  • Disregard of necessities beyond food or water
  • Eloping or Wandering

Nursing Home Negligence Attorneys of Reeves, Aiken & Hightower

If you expect someone you love has been injured or died due to nursing home neglect, contact the skilled nursing home attorneys at Reeves, Aiken & Hightower.  An experienced attorney can ensure that you and your loved ones get what you deserve from a negligent nursing facility.  Call us today at 877-374-5999, or contact us here, for a private consultation.

SC NC Accident Attorney Robert J. Reeves Inducted into SC Super Lawyers for 2012

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. And most recently, Mr. Reeves has been included in the SC Super Lawyers for 2012. Below is the review and selection process by which new members are chosen. Our attorneys include a former SC prosecutor, a former public defender, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.

Super Lawyers Selection Process

 Super Lawyers Selection Process Blessed by Courts and Bar Associations Across the Country

Bar associations and courts across the country have recognized the legitimacy of the Super Lawyers selection process. Most recently, the New Jersey Supreme Court upheld the findings of a Special Master assigned by the court to, among other things, examine the details of our process. In his July 2008 report, the Special Master lauded our lawyer-rating process, stating:

“[The Super Lawyers selection process] is a comprehensive, good-faith and detailed attempt to produce a list of lawyers that have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field.”

“Suffice to say, the selection procedures employed by [Super Lawyers] are very sophisticated, comprehensive and complex.”

“It is absolutely clear from this record that [Super Lawyers does] not permit a lawyer to buy one’s way onto the list, nor is there any requirement for the purchase of any product for inclusion in the lists or any quid pro quo of any kind or nature associated with the evaluation and listing of an attorney or in the subsequent advertising of one’s inclusion in the lists.”

Overview

Super Lawyers selects attorneys using a rigorous, multiphase rating process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public, i.e., lawyers in private practice and Legal Aid attorneys.

The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.

Step One: Creation of the Candidate Pool

Lawyers enter the candidate pool by being formally nominated by a peer or if identified by the research department during the research process.

Formal nominations

Once a year, we invite lawyers in each state to nominate the top attorneys they’ve personally observed in action. Lawyers may nominate attorneys in their own firm, but these nominations count only if each in-firm nomination is matched by at least one out-firm nomination.

Each nomination carries a point value. An out-firm nomination has substantially greater point value than an in-firm nomination. Lawyers cannot nominate themselves, and must limit their nominations to others who practice in the same state.

Our procedures and database have several safeguards that prevent lawyers from “gaming” the system. For example, we track who nominates whom. This helps us detect any excessive “back-scratch” nominations (lawyers nominating each other) and “block nominations” (where members of the same law firm all cast identical nominations). We also prohibit lawyers from engaging in “campaigning” or solicitation of nominations from other lawyers.

While important, the nomination phase is simply the first step in our process. It puts lawyers on our radar for further research and evaluation, and awards points in our rating system. But we limit the value of those points so that no matter how many nominations one receives, it will not guarantee selection.

Our attorney-led research staff searches for lawyers who have attained certain honors, results or credentials, which indicate a high degree of peer recognition or professional competence. For example, certification as a specialist in a particular area of practice, or admission to prestigious colleges or academies, e.g., The American College of Trial Lawyers. The staff identifies these credentials by reviewing a proprietary list of database and online sources, including national and local legal trade publications.

Most of the lawyers we identify in this process have also been nominated by their peers. Occasionally, however, we find outstanding lawyers who have been overlooked in the nomination process. These may include: lawyers with national litigation practices who rarely appear in the courts of their home jurisdiction; lawyers in smaller firms or from smaller communities; and lawyers practicing in less visible or highly specialized practice areas.

Informal nominations

Throughout the year, readers, clients and attorneys who are not eligible to formally nominate (that is, actively licensed to practice in the same state as the nominee) send us names of lawyers we should consider for inclusion. Though no points are awarded, we add these lawyers to the candidate pool for further research and evaluation.

Step Two: Evaluation of Lawyers in Candidate Pool

Our research department evaluates each candidate based on these 12 indicators of peer recognition and professional achievement: verdicts and settlements; transactions; representative clients; experience; honors and awards; special licenses and certifications; position within law firm; bar and or other professional activity; pro bono and community service as a lawyer; scholarly lectures and writings; education and employment background; and other outstanding achievements.

These indicators are not treated equally; some have a higher maximum point value than others.

Step Three: Peer Evaluation by Practice Area

In this step, also known as the “blue ribbon review,” candidates are grouped according to their primary areas of practice. The candidates in each practice area with the highest point totals from steps one and two above are asked to serve on a blue ribbon panel. The panelists are then provided a list of candidates from their practice areas to review, rating them on a scale of one to ten.

Final Selection

Candidates are grouped into four firm-size categories. Those with the highest point totals from each category are selected. This means solo and small firm lawyers are compared with other solo and small firm attorneys, and large firm lawyers compete with other large firm lawyers.  Five percent of the total lawyers in the state are selected for inclusion in Super Lawyers.

Before Publishing

The research staff checks each candidate’s standing with the local licensing authority. Each candidate is asked to aver that they have never been subject to disciplinary or criminal proceedings.

Final Internet searches are performed on each candidate to ensure there are no outstanding matters that would reflect adversely on the lawyer. We also contact each lawyer to ensure accuracy of all published information.

Publication

The final published list represents no more than 5 percent of the lawyers in the state. The lists are published annually in state and regional editions of Super Lawyers magazines and in inserts and special advertising sections in leading city and regional magazines and newspapers. All attorneys selected for inclusion in Super Lawyers, regardless of year, can be found on superlawyers.com.

 

SC Nursing Home Abuse – Severe Dehydration – Decubitus Ulcers

Although this SC Supreme Court case addressed a service of process exception given some extraordinary circumstances, the facts of the case show a typical scenario faced by families with relatives who must be placed into an assisted living facility. As we age, we become more dependent and vulnerable to injury. At first, our friends and family try to help. But eventually, it may reach the point where professional care is necessary for their own safety. Sadly, nursing home cases are becoming more common as our population grows older. Many nursing homes are simply not staffed appropriately to care for the residents in their charge. And, nursing home residents are older and more frail than ever. It is shocking how quickly someone can become dehydrated and malnourished and then get a decubitus ulcer or bedsore. If not treated quickly and monitored properly, the small reddened area can become serious and life-threatening, resulting in septicemia or sepsis and then premature death. Better make sure your nursing home abuse attorney has actually handled these complex cases and understands the medical issues involved. Otherwise, a jury may not fully appreciate how bedsores form and can progress so rapidly to death. Robert J. Reeves is a former Intensive Care Unit Registered Nurse (RN) who has actually treated patients with severe bedsores who became septic. He can answer your family’s questions first and then explain to a jury what happened to your loved one.

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, we understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us at 803-548-4444  today for a private consultation. Or visit our firm’s website at www.rjrlaw.com

 

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Floree Hooper, as Personal Representative of the Estate of Albert L. Clinton, Deceased, Petitioner,

v.

Ebenezer Senior Services and Rehabilitation Center, Respondent.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal from York County
S. Jackson Kimball, III, Circuit Court Judge


Opinion No. 26748
Heard September 17, 2009 – Filed December 14, 2009


REVERSED AND REMANDED


John S. Nichols, of Bluestein, Nichols, Thompson & Delgado, of Columbia, and Robert V. Phillips, of McGowan, Hood, Felder & Johnson, of Rock Hill, for Petitioner.

R. Gerald Chambers and R. Hawthorne Barrett, both of Turner, Padget, Graham & Laney, of Columbia, for Respondent.


JUSTICE BEATTY:  Floree Hooper (“Hooper”), acting as Personal Representative of the Estate of Albert L. Clinton, brought this action alleging claims for wrongful death and survival against Ebenezer Senior Services and Rehabilitation Center (“Ebenezer”).  The trial court granted summary judgment in favor of Ebenezer, finding the claims were untimely asserted.  The South Carolina Court of Appeals affirmed.  Hooper v. Ebenezer Senior Servs. & Rehab. Ctr., 377 S.C. 217, 659 S.E.2d 213 (Ct. App. 2008).  This Court granted Hooper’s petition for a writ of certiorari.  We now reverse and remand.

I.  FACTS

The facts, in the light most favorable to Hooper, are as follows.[1]  Ebenezer was a nursing home located in York County.  In February 2003, Albert L. Clinton was placed at Ebenezer by his family.  When he was admitted, Clinton had been diagnosed with short- and long-term memory deficits and impaired decision-making ability.  Ebenezer was on notice that Clinton was at risk for the development of decubitus ulcers[2] and that he had to be given proper nutrition and be repositioned every two hours to avoid this condition.

Within three weeks of his admission to Ebenezer, Clinton developed severe decubitus ulcers.  In April 2003, Clinton was admitted to Piedmont Medical Center in Rock Hill, South Carolina, where he was diagnosed with dehydration, hypernatremia[3], and severe decubitus ulcers.  As a result of the allegedly negligent treatment at Ebenezer, Clinton was transferred to another long-term care facility in May 2003.  Clinton died on May 15, 2003.

On February 6, 2006, Hooper filed with the York County Court of Common Pleas a summons and complaint in which she alleged substandard care and treatment rendered by Ebenezer contributed to Clinton’s death.  She asserted claims for wrongful death and survival.  It is undisputed by the parties that the statute of limitations on these claims began to run upon Clinton’s death on May 15, 2003 and expired three years later on May 15, 2006.  See, e.g., S.C. Code Ann. § 15-3-530 (2005) (providing a three-year statute of limitations period for the claims enumerated therein).

According to an affidavit prepared by Hooper’s attorney and supporting documents, in order to effectuate service Hooper’s attorney called the number for Ebenezer and was told that the business had been sold and it was now “Agape Rehabilitation.”  Hooper’s attorney drove by the building where Ebenezer had been located and saw a sign identifying the premises as “Agape Rehabilitation of Rock Hill.”

The attorney searched the website for the South Carolina Secretary of State and found Ebenezer was listed as a business in good standing with a registered agent (Jack G. Hendrix, Jr.) located at 1415 Richland Street, Columbia, South Carolina.  On February 8, 2006, the attorney forwarded the pleadings to the Richland County Sheriff’s Office for service upon the agent at the designated Columbia address.  At the end of February or the beginning of March, the attorney received an Affidavit of Non-Service from the Richland County Sheriff’s Office stating service was not successful because the agent had moved to an unknown address.

The attorney then hired a private investigator, who found a personal address for the agent.  On March 21, 2006, the attorney mailed the pleadings to the Richland County Sheriff’s Office for a second attempt at service upon the agent.  On April 10, 2006, the Richland County Sheriff’s Office returned the pleadings and advised the attorney that the address was in Lexington County and therefore was not within its jurisdiction.

Immediately thereafter on April 13, 2006, approximately one month before the three-year statute of limitations was due to expire, the attorney forwarded the pleadings to the Lexington County Sheriff’s Office for service upon the registered agent.  The attorney made numerous follow-up calls to the Lexington County Sheriff’s Office to determine the status of service and each time was told that the agent was being served and that he would be notified when service was complete.  On June 12, 2006, after the statute of limitations had run, the attorney received an Affidavit of Non-Service from the Lexington County Sheriff’s Office informing him that they had, in fact, been unable to effect service on the agent because “per [a] neighbor [the] agt [agent] left his wife a year ago [and it is] unknown where he lives now.”

According to the attorney, he then hired a private investigator to try to serve Agape Rehabilitation.  An Affidavit of Service and supporting documents indicate service was accomplished on June 15, 2006 by a process server upon Janet Inkelaar, who indicated that she was the Administrator of Agape Rehabilitation and that she was authorized to accept service on behalf of Ebenezer.  Inkelaar stated Ebenezer had been taken over by Agape Rehabilitation of Rock Hill in December 2004, but the two businesses were “affiliated.”

Ebenezer moved to dismiss Hooper’s action on the basis service was not completed before the running of the three-year statute of limitations of section 15-3-530, nor within the time limits of Rule 3(a)(2) of the South Carolina Rules of Civil Procedure (SCRCP), which requires that service be made within the statute of limitations or, if made thereafter, that it be made within 120 days of filing the summons and complaint.  Ebenezer alleged Hooper’s decedent died on May 15, 2003; therefore, the three-year statute of limitations expired on May 15, 2006.  In this case, the summons and complaint were filed on February 6, 2006[4] and service was not effected until June 15, 2006, which was after the running of the statute of limitations and more than 120 days after filing of the summons and complaint.

The parties submitted affidavits and other materials, so the trial court converted the motion into one for summary judgment.[5]  The trial court granted summary judgment to Ebenezer, finding Hooper’s action was not timely commenced because service did not occur within the statute of limitations or within 120 days of filing the summons and complaint as required by Rule 3(a)(2), SCRCP.

The trial court rejected Hooper’s argument that the 120-day period should not begin running until the last day of the statute of limitations, finding this conflicts with the clear and unambiguous wording of Rule 3(a)(2).  The trial court also rejected Hooper’s arguments that the statute of limitations should be equitably tolled or that Ebenezer should be equitably estopped from asserting the statute of limitations based on its failure to accurately list its registered agent for service of process with the Secretary of State as required by state law.

The Court of Appeals affirmed.  Hooper v. Ebenezer Senior Servs. & Rehab. Ctr., 377 S.C. 217, 659 S.E.2d 213 (Ct. App. 2008).  We granted Hooper’s petition for a writ of certiorari to review the decision of the Court of Appeals.

II.  LAW/ANALYSIS

A.      Standard of Review

Rule 56(c) of the South Carolina Rules of Civil Procedure provides that a trial court may grant a motion for summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  Rule 56(c), SCRCP.

“In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party.”  Brockbank v. Best Capital Corp., 341 S.C. 372, 378-79, 534 S.E.2d 688, 692 (2000).  An appellate court reviews the granting of summary judgment under the same standard applied by the trial court under Rule 56(c), SCRCP.  Id. at 379, 534 S.E.2d at 692.

B.      Equitable Tolling

On appeal, we first consider Hooper’s argument that the statute of limitations should be equitably tolled for the delay in service that occurred while Hooper was trying to serve Ebenezer’s nonexistent agent.  Hooper asserts she was entitled to rely upon the public records and Ebenezer’s failure to name a viable registered agent with the South Carolina Secretary of State as required by state law thwarted her repeated attempts to effect service.  Hooper asserts that, under all the circumstances, it would be inequitable for Ebenezer to be allowed to benefit from its conduct by obtaining a complete dismissal of her claims.  We agree.

“‘Tolling’ refers to suspending or stopping the running of a statute of limitations; it is analogous to a clock stopping, then restarting.”  51 Am. Jur. 2d Limitation of Actions § 169 (2000).  “Tolling may either temporarily suspend the running of the limitations period or delay the start of the limitations period.”  Id.

South Carolina law provides for tolling of the applicable limitations period by statute in certain circumstances.  See S.C. Code Ann. § 15-3-30 (2005) (stating exceptions to the running of the statute of limitations when the defendant is out of the state); id. § 15-3-40 (providing exceptions for persons under a disability, including being underage or insane).

In addition to these statutory tolling mechanisms, however, “[i]n order to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits, the doctrine of equitable tolling may be applied to toll the running of the statute of limitations.”  54 C.J.S. Limitations of Actions § 115  (2005).  “Equitable tolling is a nonstatutory tolling theory which suspends a limitations period.”  Ocana v. Am. Furniture Co., 91 P.3d 58, 66 (N.M. 2004).

Equitable tolling is judicially created; it stems from the judiciary’s inherent power to formulate rules of procedure where justice demands it.  Rodriguez v. Superior Court, 98 Cal. Rptr. 3d 728 (Ct. App. 2009).  “Where a statute sets a limitation period for action, courts have invoked the equitable tolling doctrine to suspend or extend the statutory period ‘to ensure fundamental practicality and fairness.’”  Id. at 736 (citation omitted).

The party claiming the statute of limitations should be tolled bears the burden of establishing sufficient facts to justify its use. Ocana, 91 P.3d at 65; see also 54 C.J.S. Limitations of Actions § 115 (“The party who seeks to invoke equitable tolling bears the devoir of persuasion and must, therefore, establish a compelling basis for awarding such relief.”).

It has been observed that “[e]quitable tolling typically applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control.”  Ocana, 91 P.3d at 66.  However, jurisdictions have considered tolling in a variety of contexts and have developed differing parameters for its application.[6]  See, e.g.Irby v. Fairbanks Gold Mining, Inc., 203 P.3d 1138, 1143 (Alaska 2009) (“Under the doctrine of equitable tolling, when a party has more than one legal remedy available, the statute of limitations is tolled while the party pursues one of the possible remedies.”); Abbott v. State, 979 P.2d 994, 998 (Alaska 1999) (“Federal precedent equitably tolls the limitations period in three circumstances:  (1) where the plaintiff has actively pursued his or her judicial remedies by filing a timely but defective pleading; (2) where extraordinary circumstances outside the plaintiff’s control make it impossible for the plaintiff to timely assert his or her claim; or (3) where the plaintiff, by exercising reasonable diligence, could not have discovered essential information bearing on his or her claim.” (footnotes omitted)); Kaplan v. Morgan Stanley & Co., ___ A.2d ___, ___ (Vt. 2009) (2009 WL 2401952) (“Equitable tolling applies either where the defendant is shown to have actively misled or prevented the plaintiff in some extraordinary way from discovering the facts essential to the filing of a timely lawsuit, or where the plaintiff has timely raised the same claim in the wrong forum.” (citing Beecher v. Stratton Corp., 743 A.2d 1093, 1098 (Vt. 1999)); cf. Machules v. Dep’t of Admin., 523 So. 2d 1132, 1134 (Fla. 1988) (stating the doctrine of equitable tolling, unlike equitable estoppel, does not require deception or misrepresentation by the defendant; rather, it serves to ameliorate the harsh results that sometimes flow from a strict, literalistic application of administrative time limits).

In our view, the situations described above do not constitute an exclusive list of circumstances that justify the application of equitable tolling.  “The equitable power of a court is not bound by cast-iron rules but exists to do fairness and is flexible and adaptable to particular exigencies so that relief will be granted when, in view of all the circumstances, to deny it would permit one party to suffer a gross wrong at the hands of the other.”  Hausman v. Hausman, 199 S.W.3d 38, 42 (Tex. App. 2006).  Equitable tolling may be applied where it is justified under all the circumstances.  We agree, however, that equitable tolling is a doctrine that should be used sparingly and only when the interests of justice compel its use.

We have previously tolled a statute of limitations based on equitable considerations.  In Hopkins v. Floyd’s Wholesale, 299 S.C. 127, 382 S.E.2d 907 (1989), a workers’ compensation case, we tolled the running of the statute of limitations for the time that the employee was induced by the employer to believe the claim would be taken care of without filing a claim (the “reliance period”).  In reaching this result, we considered two methods of treating the claim:  (1) requiring that the claim be filed a “reasonable time” after the reliance period, or (2) tolling the statute of limitations during the reliance period.  Id. at 129, 382 S.E.2d at 908-09.  We held the better rule was to toll the running of the statute of limitations during the reliance period, as this “rule estopping employers from asserting the statute of limitation[s]” provided greater certainty and gave the employee the greatest benefit of the equitable rule.  Id.at 130, 382 S.E.2d at 909.

In Schriber v. Anonymous, 848 N.E.2d 1061 (Ind. 2006), a widow brought medical malpractice and wrongful death claims arising out of the death of her husband.  The widow encountered difficulties in effecting timely service because the defendant, a healthcare facility, failed to file a certificate of assumed name for its business designation and to conspicuously post its facility license in public view as required by state law.  Id. at 1063.  The Indiana Supreme Court, while deciding the case on another basis, observed that the proper procedure should have been for the court to judicially toll the expiration of the applicable limitations period for the time that the defendant’s actions hindered the plaintiff’s discovery of the proper entity name and thus delayed her attempt to effect service.  Id. at 1063-64.

In the current appeal, we find Ebenezer’s failure to properly list its registered agent for service with the Secretary of State as required by state law hindered Hooper’s pursuit of service.[7]  Although Ebenezer argues it is entitled to the dismissal of Hooper’s action because she should have pursued alternative means of service, such as publication or service upon the Secretary of State, nowhere in Ebenezer’s arguments does it acknowledge the obvious fact that the need for alternative means of service was caused by Ebenezer’s own failure to supply the correct information regarding its agent to the Secretary of State as required by law.  In fact, as Hooper noted in her brief, though several years had passed, Ebenezer still had not supplied the name of an appropriate agent for service of process to the Secretary of State at the time this case was initially brought before our Court.  Hooper was entitled to rely on the public records and she diligently pursued service on what turned out to be a nonexistent agent.  Thus, it is not equitable that Ebenezer be the beneficiary of the drastic consequence of a dismissal.

Moreover, it is important to note that a party utilizes these alternative methods of service only after first exercising reasonable or due diligence to effect service on an individual or agent.  See e.g., S.C. Code Ann. §§ 15-9-710 & -730 (2005) (providing that when an individual or corporate agent, respectively, cannot be located in this State after the exercise of due diligence, service may be had by publication once this fact has been established by affidavit to the satisfaction of the court); id. § 33-44-111 (2006) (stating if an agent for a limited liability company cannot be found after the exercise of reasonable diligence, service may be had upon the Secretary of State).

In this case, Hooper first tried to effect service upon the agent named by Ebenezer at the address it supplied to the Secretary of State.  When that was unsuccessful, Hooper hired a private investigator, who found a personal address for the agent.  Hooper contacted the Lexington County Sheriff’s Department on numerous occasions and was told that service was being made.  She was not notified until one month after the running of the statute of the limitations that service had been unsuccessful because the whereabouts of the agent could not be determined.

Hooper finally was able to effect service after the statute of limitations had run, only after she exercised reasonable and due diligence to serve Ebenezer’s agent.  Under Rule 3(a)(2), SCRCP, even if the limitations period has run, service may still be effected if it is accomplished within 120 days of filing of the summons and complaint.  Unfortunately, Hooper was approximately one week past the 120 days.  Thus, under the unique circumstances of this case, we conclude it is appropriate to equitably toll the statute of limitations for the time Hooper spent in pursuit of Ebenezer’s nonexistent agent.

Finally, we note that public policy and the interests of justice weigh heavily in favor of allowing Hooper’s claim to proceed.  The statute of limitations’ purpose of protecting defendants from stale claims must give way to the public’s interest in being able to rely on public records required by law.

CONCLUSION

As a matter of law and public policy, we reverse the trial court’s grant of summary judgment in favor of Ebenezer and remand for further proceedings consistent with this opinion.[8]

REVERSED AND REMANDED.

TOAL, C.J., WALLER and PLEICONES, JJ., concur. KITTREDGE, J., concurring in result only.

[1]  On a motion for summary judgment, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party.  Bovain v. Canal Ins., 383 S.C. 100, 678 S.E.2d 422 (2009).

[2]  Commonly referred to as bed sores.  Webster’s Third New International Dictionary 588 (2002).

[3]  An excessive amount of sodium in the blood.  Dorland’s Illustrated Medical Dictionary 741 (25th ed. 1974).

[4]  Ebenezer states in its materials that filing of the summons and complaint occurred on February 8, 2006, but this appears to be a scrivener’s error.

[5]  See, e.g.Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999) (allowing a motion to dismiss to be treated as a motion for summary judgment where the trial court considers materials outside the pleadings and the parties have a reasonable opportunity to respond to the materials).

[6]  We note that in the jurisdictions referenced above that discuss tolling a limitations period when a plaintiff is prevented from filing a complaint, filing generally marks the time for commencement of an action.  See, e.g., Alaska R. Civ. P. 3(a) (Alaska); Rule 1-003 NMRA (New Mexico); V.R.C.P. 3 (Vermont); see also Fed. R. Civ. P. 3 (federal rules).

[7]  Under South Carolina law, corporations and limited liability companies must designate and continuously maintain an agent for service of process.  See S.C. Code Ann. § 33-5-101 (2006) (corporations); id. § 33-44-108 (limited liability companies).

[8]  Based on our holding, we need not reach Hooper’s remaining arguments regarding the 120-day provision of Rule 3(a)(2), SCRCP and equitable estoppel.  However, we note that, at oral argument, Hooper’s counsel conceded the appropriateness of the ruling of the Court of Appeals regarding the application of Rule 3(a)(2), SCRCP.

Nursing Home Abuse – Signs of Neglect – What to Do First

The article below was found in Lawyers and Settlements.com. It is very informative regarding types of elder abuse, signs of neglect, and what laws are available to protect your loved ones if the unthinkable happens. As our parents and grandparents grow older, we may face the decision to place them into assisted living or even skilled nursing care facilities. It is an extremely stressful and guilt producing time for everyone involved. They do not go there to die. Rather, the elderly should be cared for and allowed to live out the rest of their lives fully. Sadly, with low Medicare rates and a bad economy, there are often too few staff to give proper care, and elderly residents fall, break hips, become dehydrated or malnourished, develop bed sores, and even die prematurely. If you suspect your loved one is being neglected or worse, secure their safety first. Move them to a different facility if you can. Then, call an experienced nursing home abuse attorney and let’s look at what can be done to protect your family. Compare our attorneys’ credentials and experience to any other law firm.

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com

 

Elder Care and Nursing Home Abuse

You may have gone to great lengths and expense to find the right elder care facility or nursing home for a member of your family or someone you know. It is a traumatic and difficult decision to place someone in a nursing home and you can only hope that they will receive the best possible care. Unfortunately, nursing home abuse is more prevalent than you might think. Often, due to a shortage of staff or staff that has not been adequately trained, the best nursing home care is not always readily available, and nursing home residents become victims of the “hidden crime.”

Nursing Home Abuse and Neglect

Nursing home residents often require constant attention, and may not be able to communicate nursing home abuse or neglect from their caregivers. And they are unaware of elder care law. Nursing home neglect is often unreported because it isn’t always physical abuse. Emotional, psychological, and financial abuse or exploitation is all too frequent.Institutional entities include skilled nursing facility (SNF) or homes, foster homes, group homes, and board and care facilities. Abusers may be staff members, other patients and even visitors.If a staff member refuses to allow family or friends to see the resident or insists on being present during the visit, it is possible that abuse is taking place. Other examples of abuse are:

  • Withholding food or not providing food according to prescribed schedule
  • No access to water / dehydration
  • Medication errors
  • Poor toileting facilities
  • Inadequate daily care and grooming, or abandonment
  • Failure to diagnose or recognize heart attack or stroke
  • Failure to treat or provide emergency care for stroke or heart attack
  • Elopement or wandering, where the patient leaves the nursing home without authorization
  • Intimidation or use of threats

Some Signs of abuse are:

nursing home abuse and personal injury lawyersEmotional: behavior and/or personality changes; withdrawn and uncommunicative; dementia; depression; anxiety and agitation.

Physical: Unexplained accident or injury; Decubitus Ulcers (Bedsores); Frozen joints; Contractures; Brittle bones or Fracture; Muscle atrophy; Burns; Fearfulness; Broken eyeglasses; Rapid, unexplained weight loss; Unwarranted use of physical restraints

Sexual: Unexplained venereal disease;Genital infections;Vaginal or anal bleeding;Torn or stained underclothing;Bruising around breasts, upper abdomen, or inner thighs

Nursing Home and Elder Law 

By law, nursing homes must provide care to maintain the highest practicable physical, mental and psycho-social well-being of each resident. Federal and state laws were designed to protect nursing home residents and the abuse or neglect that occurs there and in other assisted living facilities. Many states also require that nursing homes meet individual state standards relating to the type and quality of care required.

Failure to comply with elder law has resulted in abuse that in turn caused illness, discomfort and death. This abuse is often referred to as “institutional abuse”.

State Elder Law

Most states have addressed the institutional abuse issue with laws that require doctors, nurses and other health care professionals to report suspected neglect to a designated state office. Laws further require nursing homes to investigate and report any abuse incidents that occur within their facility. Physicians, hospitals, nurses, therapists, aides, orderlies and administrators must provide adequate care, medical treatment and protection to the residents and patients in their facility.

State laws typically require a nursing home to be licensed in order to operate, provides for annual inspections, sets up a procedure for handling complaints, prohibits discrimination, and imposes sanctions for violation, such as licensure suspension and revocation. The state regulatory agency investigates any reports of alleged abuse or violations.

Federal Elder Law

nursing home abuseIn 1987, the federal government passed the Nursing Home Reform Act (NRA), and nursing homes that receive federal funds must comply with the act. The NRA sets standards for care, establishes a list of rights for residents, such as the right to be treated with dignity and to exercise self-determination, sets up a monitoring system for nursing homes, and specifies sanctions for non-compliance. The Act covers resident care and rights, staffing, the quality of care, restraints, privacy, and record keeping. The law applies to all the various types of nursing homes who receive funds under Medicaid or Medicare programs.

Under the Nursing Home Reform Act, nursing homes must also do the following in order to meet the basic tenet of the Act:

  • Employ sufficient nursing and other staff in order to provide nursing and related services
  • Be administered in a way that enables the nursing home to use resources effectively and efficiently
  • Within 14 days of admission, perform an initial comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity. After significant changes in the resident’s physical or mental status and/or at least once every 12 months, perform such an assessment.
  • Develop comprehensive individualized care plans for residents. Care plans must include measurable objectives and schedules to meet each resident’s medical, nursing, mental and psychosocial needs as identified in the comprehensive assessment discussed above. The care plan must be developed within 7 days after completion of the comprehensive assessment. It must detail the services that are to be provided. The care plan must also be periodically reviewed and revised by a team of qualified persons after each assessment.
  • Provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs) to meet the needs of each resident.
  • Provide supervised medical care by a physician. The nursing home must provide or arrange for the services of a physician on a 24 hour per day basis in case of an emergency.
  • Prevent the deterioration of a resident’s ability to bathe, dress, groom, transfer and ambulate, toilet, eat, speak or otherwise communicate.
  • Provide necessary services and assistance in order to maintain good nutrition, grooming, and personal and oral hygiene if the resident suffers from any impairment daily living activities.
  • Ensure that residents do not develop pressure sores. If a resident has pressure sores, the nursing home must provide the necessary treatment to promote healing and prevent infection and development of new sores.
  • Provide treatment and services to incontinent residents to restore as much normal bladder functioning as possible and to prevent urinary tract infections.
  • Ensure that residents receive proper treatment and any devices to maintain hearing and visual abilities.
  • Ensure that residents receive adequate supervision and assistive devices to prevent falls.
  • Ensure that residents maintain acceptable parameters of nutritional status, such as body weight and protein levels.
  • Provide residents with enough fluid to maintain hydration and health.
  • Prevent medication errors.
  • Care for residents in a way that promotes maintenance or enhancement of their quality of life.
  • Promote resident care in a way and in an environment that enhances each resident’s dignity and respect in full recognition of individuality.
  • Ensure that residents can choose activities, schedules, and health care consistent with individual interests, assessments, and plans of care.
  • Maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurate, accessible, and systematically organized.

In 2008, The U.S. Department of Health and Human Services’ Office of the Inspector General released a report detailing the “Trends in Nursing Home Deficiencies and Complaints” that showed over 90 percent of that nation’s nursing homes were cited for federal violations from 2005-2007. The most common deficiency categories cited in each of the past 3 years were quality of care, resident assessment, and quality of life.

The report also showed a greater percentage of For-Profit nursing homes were cited for deficiencies than non-for-profit and government nursing homes from 2005-2007.