Bass v. S.C. Dep't of Soc. Servs.
| Decision Date | 02 December 2015 |
| Docket Number | Appellate Case No. 2013–001332.,No. 27593.,27593. |
| Citation | 414 S.C. 558,780 S.E.2d 252 |
| Court | South Carolina Supreme Court |
| Parties | Diane BASS and Otis Bass, individually and as Parents and Guardians of Alex B., a minor under the age of ten (10) years, and Hanna B., a minor under the age of ten (10) years, Petitioners, v. SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent. |
Lee Deer Cope, of Peters Murdaugh Parker Eltzroth & Detrick, PA, of Hampton; John K. Koon and Jamie L. Walters, of Koon & Cook, PA, of Columbia, all for petitioners.
Patrick John Frawley, of Davis Frawley, LLC, of Lexington, for respondent.
Diane and Otis Bass, individually and on behalf of their minor children (collectively, Petitioners), appeal the court of appeals' decision reversing a jury verdict in their favor against the South Carolina Department of Social Services (DSS) for gross negligence and outrage in connection with a DSS investigation. See Bass v. S.C. Dep't of Soc. Servs., 403 S.C. 184, 742 S.E.2d 667 (Ct.App.2013). We reverse.
Diane and Otis Bass are married and have three children: Brittany, Hanna, and Alex. All three children have special needs, but Hanna and Alex are also autistic. Otis works outside the home, and Diane cares for the children.
Due to their forms of autism
and their other cognitive issues, both Hanna and Alex were prescribed Clonidine to help them sleep at night, in addition to other medications. A compounding pharmacy filled the Clonidine prescription. In April 2008, the prescription was inadvertently mixed at one thousand times the recommended concentration.
On the evening of May 11, 2008, Diane administered the wrongly compounded Clonidine
to Hanna. During her bath that evening, Hanna "went blank," "[h]er eyes turned around in the back of her head, and her skin turned cold." Diane took Hanna to Fairfield Memorial Hospital, but she was not admitted. Two days later, Hanna became lethargic, so Diane took her to their family doctor. At that time, the family doctor sent Hanna to Palmetto Richland Memorial Hospital (Richland Memorial) in Columbia due to his concern over Hanna's lethargy and respiratory issues, and Hanna was admitted.
On May 15, Alex became ill after taking the Clonidine
. Diane took him to the family doctor. The nurse practitioner on call testified that Alex was very ill upon arrival. Alex was transported via ambulance to Fairfield Memorial Hospital, and then via helicopter to Richland Memorial and placed on life support.
That same day, DSS received a report that two special needs children were in the hospital due to "possible poisoning by parents." The agency assigned an overall danger rating of "medium" to the case because while Hanna and Alex were very young—seven and three at the time, respectively—they were not in imminent danger while they were in the hospital. Nonetheless, the "medium" danger rating mandated that a DSS employee respond to the report and initiate an investigation within twenty-four hours. Caseworker Monique Parrish arrived at the hospital within forty-five minutes after DSS received the report.
At the hospital, Parrish spoke to Otis, who "had no idea what was going on." She also questioned the oldest child, Brittany, who told Parrish that Diane "poured medicine in soda and gave it to Alex and Hanna," and that they became ill shortly thereafter. Moreover, the hospital staff speculated to Parrish that the children had been overly medicated. Parrish took the bottle of medicine, but did not arrange to have it tested and did not otherwise investigate its contents. After observing Hanna and Alex, Parrish asked Diane and Otis to meet her at the DSS office the next morning.
On May 16, after a family meeting with Diane, her sisters, and her niece, Parrish determined the children should be removed from the Bass home and placed with Diane's sister, Linda.1 Diane and Otis signed a safety plan to this effect,2 and Linda took custody of the three children.3 Diane and Otis were permitted to visit the children "whenever they wanted" so long as Linda was present during the visit.
On May 20, in compliance with DSS policy, Parrish held a five-day staff meeting with other DSS employees, during which they determined that Diane and Otis were unfit parents.
On June 17, Linda received a telephone call from the compounding pharmacy's insurer concerning the improperly filled Clonidine
prescription. Linda notified DSS, and the agency subsequently concluded that the medication was the cause of the children's hospitalization. This revelation led to the eventual return of the children to Diane and Otis. However, DSS continued to make announced and unannounced visits at the Bass home through the end of 2008 and still refuses to remove its finding that Diane and Otis "harmed their children" from the agency's file on Petitioners.
Petitioners filed a lawsuit against DSS, the compounding pharmacy, and the pharmacist, alleging negligence and gross negligence, and seeking actual and punitive damages. In May 2011, after settling with the pharmacy and the pharmacist, Petitioners served DSS with an amended complaint. In their amended complaint, Petitioners alleged causes of action for gross negligence, defamation, and outrage, and sought actual damages. In its answer, in addition to a general denial, DSS asserted affirmative defenses under the South Carolina Tort Claims Act (the TCA),4 as well as the affirmative defenses of comparative negligence, negligence of a third party, legal privilege and justification, qualified privilege, and with respect to the defamation and outrage causes of action, failure to state a claim upon which relief can be granted.
Trial testimony established that DSS cannot remove a child unless there is an unreasonable safety threat to the child, and that the standard practice is to keep children in the home when possible. Moreover, in cases involving potential medical neglect, DSS caseworkers must consider medical evidence. To that end, Parrish testified that in order to complete a medical neglect investigation, a caseworker must communicate with medical treatment providers, and that children cannot be removed from the home without fact-finding to substantiate the medical claim.
Despite these prerequisites to removing a medically neglected child from the home, Parrish testified that she "did not look into the poisoning," but instead "wait[ed] for the lab results."5 Parrish acknowledged that she did not speak to a doctor about the children's illnesses or the lab results, yet she based the removal of the children solely on the possibility that the children had been poisoned by medication.
Parrish stated that she did not consider her investigation "complete" because she never attempted to investigate the reasons for the potential poisoning by medication other than to wait for the lab results. Similarly, because the case involved a potential poisoning, Parrish's supervisor testified that DSS should have done more to investigate the medication, such as contacting the pharmacy or Poison Control.
Parrish testified further that she was unable to conduct a thorough investigation because she was unwell after a recent neck surgery, and was taking pain medication that affected her ability to perform her job functions. Specifically, Parrish stated that at the time of the investigation, she was experiencing substantial physical pain and was barely able to complete simple tasks such as typing or even walking. Parrish testified that although she was supposed to be on light work duty at the DSS office, her supervisor threatened her job and forced her to do field work on Petitioners' case instead.6
In an attempt to justify the removal, Parrish testified that when she and another DSS employee inspected the Bass home on May 20, they found it to be in "disrepair."7 In addition, Parrish testified that Diane had recently been diagnosed with diabetes
, and that she had confessed to Parrish that she sometimes experienced feelings of "sadness," "hopelessness," and was "often overwhelmed."8 Despite these purported grounds for removal, this information was not known to DSS when the agency removed the children for medical neglect.
Petitioners' expert, Michael Corey, is a social worker and consultant who has assisted states in implementing safety assessment models for investigation and treatment by child protective services. He opined to a reasonable degree of certainty that DSS did not exercise slight care under these circumstances. Corey testified that DSS has a duty to investigate allegations of abuse and neglect and the agency can do so negligently, gross negligently, or " competent [ly]." Corey testified that Parrish's initial response at the hospital was "very good" and that she properly provided Diane and Otis with a brochure explaining their rights and held a family meeting; therefore, Corey found that Parrish exercised care in responding to the report and at the beginning of her investigation. However, he opined that DSS should have only sought placement in a relative's home after determining that the children were not safe in their own home, and that DSS was grossly negligent in failing to conduct a proper investigation into the poisoning claims, and therefore was grossly negligent in removing the children from the home.
Corey specifically pointed to the following evidence to support his opinion that DSS was grossly negligent: (1) Parrish, by her own testimony, was not capable of conducting the investigation due to her extreme pain and medication; (2) After Diane and Otis stated that they did not know what happened to their children except that they administered the medication, Parrish removed the children from the home without an investigation into the medication; (3) Parrish did not interview or speak to any of the children's doctors, including Petitioners' family doctor; (4) Because DSS gave Diane and Otis a choice between removal to foster care or placement...
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