Davis v. Agape Nursing Rehab. Ctr.

• Decision Date: 09 March 2022
• Docket Number: 2022-UP-094,Appellate Case 2018-002236
• Court: South Carolina Court of Appeals
• Parties: Amy S. Davis as Personal Representative of The Estate of Utricia Shealy, deceased, Respondent, v. Agape Nursing Rehabilitation Center, Inc., Agape Management Services, Inc., John Doe, Richard Roe Corporation, Jane Doe, and Mary Doe Corporation, Defendants, Of Which Agape Nursing Rehabilitation Center, Inc. and Agape Management Services, Inc. are the Appellants.

Amy S. Davis as Personal Representative of The Estate of Utricia Shealy, deceased, Respondent,
v.
Agape Nursing Rehabilitation Center, Inc., Agape Management Services, Inc., John Doe, Richard Roe Corporation, Jane Doe, and Mary Doe Corporation, Defendants, Of Which Agape Nursing Rehabilitation Center, Inc. and Agape Management Services, Inc. are the Appellants.

No. 2022-UP-094

Appellate Case No. 2018-002236

Court of Appeals of South Carolina

March 9, 2022

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Heard December 8, 2021

Appeal From Lexington County Walton J. McLeod, IV, Circuit Court Judge

Jenkins McMillan Mann and Shaun C. Blake, both of Rogers Lewis Jackson Mann & Quinn, LLC, of Columbia, for Appellants.

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Kenneth Luke Connor and Christopher Caleb Connor, both of Connor & Connor LLC, and Allen Keith McAlister, Jr., of Hawk Law Group, all of Aiken, for Respondents.

PER CURIAM

In this nursing home negligence action, the estate of Utricia Shealy (the Estate) sued Agape Nursing Rehabilitation Center, Inc. and Agape Management Services, Inc. (together, Agape) for damages resulting from injuries Ms. Shealy sustained to her hip when she fell from her wheelchair twenty-seven hours after her admission to Agape Nursing Rehabilitation Center. The Estate's professional negligence claim alleged Agape's nurses breached their duty of care to Ms. Shealy. The Estate's ordinary negligence claim alleged Agape failed to provide appropriate care for residents. The Estate further alleged Agape Management Services and Agape Nursing Rehabilitation Center were alter egos of one another due to an amalgamation of interests and acted as agents of one another-making each responsible for the negligence of the other. In its answer, Agape alleged inter alia the affirmative defense of intervening cause.

The jury found, "Defendants were engaged in a joint enterprise/joint venture, were agents of one another, or were amalgamated[.]" The jury awarded the Estate $47, 500 actual damages and $250, 000 non-economic damages. On appeal, Agape asserts the trial court erred in: 1) granting a directed verdict against Agape on its affirmative defense of intervening cause; 2) admitting evidence of past complaints against Agape investigated by Department of Health and Environmental Control (DHEC); 3) admitting evidence of the wealth of Agape's owner and family; 4) denying Agape's directed verdict motion on the Estate's claim of professional negligence as to Agape Management Services; and 5) denying Agape's motion for leave to deposit and stay the accrual of interest and execution of the judgment during the appeal. We affirm.

1. Agape asserts the trial court erred in granting a directed verdict on its affirmative defense of intervening cause as to the Estate's professional negligence claim.^[1] The

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Estate presented evidence Agape's nursing staff deviated from the standard of care by not taking action that would have prevented Ms. Shealy's fall. However, Agape argues given the evidence at trial, the jury could have believed Ms. Shealey's treating physician's decision to prescribe Ativan and not any other fall intervention intervened to cause of Ms. Shealy's injuries. This argument is misplaced for several reasons. First, Agape does not contend the physician's treatment decision was negligent. In fact, Agape asserts it does not matter if it was-it only matters whether the physician's decision restrained the nurse's actions so as to be the actual cause of her injuries. In South Carolina, though, only intervening negligence has been held to be an affirmative defense. See Small v. Pioneer Mach., Inc., 316 S.C. 479, 489, 450 S.E.2d 609, 615 (Ct. App. 1994) (stating the negligent intervening act of a third party is an affirmative defense to a negligence claim). Agape presented no expert testimony that the physician breached the standard of care, and no evidence indicated the treating physician's decisions (which were made ten hours before Ms. Shealy's fall) broke the causal chain of her injuries. See Horne v. Atl. Coast Line R. Co., 177 S.C. 461, 181 S.E. 642, 646 (1935) (distinguishing between concurring and intervening causes of injury and finding a concurring cause of injury is not a shield to liability, while an intervening cause may be so long as it is independent of and occurs subsequent in time to the initial negligent breach or "primary" cause of injury, thereby breaking the chain of causal connection between the primary breach and the injury); Botehlo v. Bycura, 282 S.C. 578, 583, 320 S.E.2d 59, 62-63 (Ct. App. 1984) (finding in a negligence claim against a physician, there will usually be no genuine issue of material fact unless the claimant presents expert testimony on the standard of care and its breach by the physician). Agape's argument that the nurses were bound by the physician's decisions is really an argument that the nurses were acting within their standard of care when Ms. Shealy fell. This, of course, was the ultimate question presented to the jury, and because there was conflicting evidence about whether the nurses breached their standard of care, the question was properly left to the jury. Accordingly, we find no error in the trial court's decision to grant a directed verdict on Agape's affirmative defense of intervening cause.

2. Agape asserts the trial court violated Rules 402 and 403, SCRE, in allowing testimony regarding an October 2013 DHEC survey of Agape's past infractions. We find the trial court did not abuse its discretion in allowing the testimony. First, the questions the Estate asked regarding the DHEC survey were either about patients who fell at Agape facilities or circumstances that could make falls more likely, such as unreasonable delay in helping patients use the restroom. These infractions were

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probative of whether Agape breached its duty of care to Ms. Shealy because the infractions placed it on notice that without attention to fall mitigation efforts, falls and injuries could result. See Pike v. S.C. Dep't of Transp., 343 S.C. 224, 234, 540 S.E.2d 87, 92-93 (2000) (evidence of previous accidents at an intersection were relevant to show the Department of Transportation knew the intersection was dangerous and potentially required a traffic light). Further, it is clear the trial court exercised discretion when admitting testimony regarding the DHEC survey by limiting the scope of the infractions to the issue of patient falls. See Nestler v. Fields, 426 S.C. 34, 38, 824 S.E.2d 461, 463 (Ct. App. 2019) ("We may only reverse a trial court's evidentiary rulings if they constitute an abuse of discretion, meaning they rest on an error of law or inadequate factual support."); Rule 403, SCRE ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."). Therefore, we find no abuse of discretion in the admission of evidence regarding the DHEC survey results under Rule 402 or 403, SCRE.

3. Agape asserts the infractions from the DHEC survey "occurred under a different administrator of the facilities, a different director of nursing, and different staff," therefore, there was not a proper foundation for the admission of the DHEC survey results. A public record is admissible if it is shown to be "from the public office where items of this nature are kept." Rule 901(b)(7), SCRE. Here, the trial court found the DHEC survey was a public record. Agape challenges the witness' familiarity with the record. Because Agape does not contest the DHEC survey's status as a public record, we affirm the admission of testimony regarding the DHEC survey as properly authenticated.

4. Agape asserts the trial court violated Rules 402 and 403, SCRE, in admitting evidence of the wealth of Agape's owner, Scott Middleton; his family's involvement with Agape; and a Center for Medicaid Services (CMS) cost report. First, Agape asserts the trial court erred in allowing the Estate to elicit testimony from Scott Middleton that three nursing home facilities, including the Rehabilitation Center, sold for $20 million and that Middleton's wife and daughter received compensation from Agape businesses. Next, Agape asserts the CMS cost report, the sale price of the nursing homes, and the employment of the Middleton family were not relevant and unduly prejudicial. We find the evidence of the sale of nursing homes and the CMS cost report was probative of issues at trial. See Rule 401, SCRE...