The South Carolina Supreme Court has reinstated a $4 million verdict in favor of a family whose three special needs children were removed from their custody without an adequate investigation as to the injuries they sustained as a result of consuming contaminated medication.
In Bass v. DSS, the state supreme court reversed an appellate court ruling regarding a trial court rejection of judgment notwithstanding verdict requested by the defendant agency.
Here’s what happened:
A couple with special needs children – two of them autistic – were given medication to give to the children to help them sleep at night. This was on top of a number of other medications the children took for various ailments. But in April 2008, the compounding pharmacy that produced the drug mixed it incorrectly – and made a batch that contained 1,000 times the recommended concentration.
The following month, that medication was administered to her youngest daughter before her bath. As she was being bathed, her mother said the girl “went blank.” Her eyes rolled back in her head and her skin turned cold. She was taken to the hospital, but released. Two days later, her mother took the girl to the family doctor, as she’d been extremely lethargic. He referred the girl to the hospital, concerned about her breathing.
The next day, her son became ill. He too was taken to the doctor. A nurse practitioner at the office would later describe the boy as “very ill,” and he was taken via ambulance to a local hospital and then by helicopter to a more advanced facility. He was then placed on life support.
The South Carolina Department of Social Services was called in to investigate what the hospital described as “possible poisoning by parents.”
A caseworker questioned mother, father and the oldest daughter. Hospital staffers told the caseworker they suspected the children had been overmedicated. Caseworker took the bottle of medicine, but didn’t make any arrangements to have it tested.
The next day, she decided the children should be removed from the home, and temporary custody was signed over to the children’s aunt. The young girl who had been sickened went with another relative.
The agency later held a meeting in which they determined the parents were unfit.
In June, mother received a call from the compounding pharmacy’s insurer, notifying her the medication had been improperly filled. She immediately notified the social service agency, which concluded this was the reason the children were sick. Eventually, this led to the children being returned to the family. However, the agency continued to make unannounced visits to the home and refused to remove the finding that the parents had harmed their children.
The parents later sued the DSS, as well as the compounding pharmacy and the pharmacist, for personal injury. Plaintiffs alleged negligence and gross negligence and sought actual and punitive damages. They later settled out-of-court with the pharmacy and pharmacist for an undisclosed amount.
Plaintiffs then amended the complaint against DSS alleging gross negligence and defamation. They asserted the agency failed to launch a thorough investigation and this resulted in harm to the entire family, including ongoing therapy for the children, who were deeply affected by the separation from their parents and break in routine.
Defendants argued third party negligence and comparative negligence, as well as qualified privilege and failure to state a claim.
The case went to jurors who awarded plaintiffs $4 million. DSS requested a judgement notwithstanding verdict, but the trial judge denied it.
The appeals court reversed, however, finding the agency hadn’t acted with gross negligence in removing the children.
In reversing the appeals court decision, however, the state supreme court noted jurors were asked not whether the agency was grossly negligent in initially removing the children from parental custody (and the supreme court found the agency hadn’t been wrong there) but rather whether they had acted with gross negligence in failing to conduct a thorough investigation after that point. In that regard, the supreme court decided, jurors had evidence to support a finding of gross negligence (the standard for cases against government agencies) and thus, the judge was right not to grant a judgment nothwithstanding verdict in this case.
The $4 million award was reduced per S.C. code 15-78-120 to $300,000.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Bass v. DSS, Dec. 2, 2015, South Carolina Supreme Court
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