Answers to Your Questions on South Carolina Insurance, Negligence, Court Cases, and More
We have heard many questions from our clients over the years. In an effort to keep all injury victims informed, we have compiled the most popular topics into one searchable page. Read through our FAQ for information on gathering evidence, securing expert medical testimony, and other elements of your case.
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How long do I have to file a wrongful death case in South Carolina?
Since a wrongful death claim is essentially a personal injury claim that results in death, one must file a wrongful death claim in South Carolina in the same timeframe as they would a personal injury claim. Pursuant to S.C. Code Ann. § 15-3-530(5), the statute of limitations in filing a personal injury claim and, thus, a wrongful death claim in South Carolina is three years from the time they knew they had a cause of action, or by reasonable diligence should have known they had a cause of action, to file suit for a personal injury claim. In most circumstances, the time would be three years from the death of the individual.
What is “premises liability?”
In today’s view of lawsuits, when most people think of premises liability they assume that means slip and falls. While premises liability does include those types of injuries, it also involves many more. In general, premises liability is simply a legal theory that holds property owners, and sometimes landlords and tenants, liable for accidents or injuries that occurred on their property as a result of negligence. In a broad sense, you have to prove the owner owed a duty to the injured and that they were negligent in their ownership or maintenance of the property.
What is a wrongful death case worth in South Carolina?
As with any type of personal injury claim, there is no calculated formula for determining what a wrongful death case is worth in South Carolina. However, it is helpful to understand the types of damages one is entitled to when pursuing a wrongful death claim:
- Economic Damages: This can include funeral or burial expenses, any medical bills that might be related to the deceased’s death, any property damage that might be related to the death, any lost wages or earnings (usually necessary to calculate the deceased’s lost future earnings), any lost future earning capacity, and any other financial damages that may be lost as a result of the deceased’s death.
- Non-economic Damages: The beneficiaries of the estate are allowed to recover for their pain and suffering, mental anguish, loss of the deceased person’s experience, knowledge, and judgment, and loss of the deceased person’s care, companionship, and protection.
- Punitive Damages: Punitive damages are rare in South Carolina but are intended to punish the defendant for their actions or to deter any future wrongdoing. To recover punitive damages in South Carolina, S.C. Code Ann. § 15-32-510 provides that one must prove by clear and convincing evidence that the defendant was “willful, wanton, or reckless” in their actions that caused the defendant’s death. If proven, punitive damages may be awarded equal to the greater of three times actual damages (economic plus non-economic) or $500,00.00.
- Survival Action: A survival action is a different claim than a wrongful death action but both can be filed simultaneously. Pursuant to S.C. Code Ann. § 15-5-90, a survival action is essentially a cause of action that survives the deceased and allows recovery for his or her pain and suffering during the course of the accident or injury that caused the death. In order to recover, one must be able to prove that the deceased was conscious to experience pain and attempt to prove how long it took for the deceased to die.
Who can file a wrongful death case in South Carolina?
Pursuant to S.C. Code Ann. §15-51-20, the personal representative or administrator of the deceased’s estate can bring the wrongful death suit on the deceased’s behalf. The executor or administrator is usually the person named as the personal representative of the estate in the deceased’s will or trust. If no such person is designated by will or other estate plan, the court will appoint someone to serve as executor; usually the closest to kin.
The personal representative of the estate is essentially stepping into the shoes of the deceased and bringing suit on his or her behalf. However, the personal representative is pursing the claim on behalf of the surviving family members who are the estate’s beneficiaries. The surviving family members who can recover in a wrongful death suit in South Carolina include the surviving spouse and children of the deceased; the surviving parents of the deceased, if no spouse of children exist; and the heirs at law of the deceased, if there are no parents, spouse, or children exist.
What is a “wrongful death?”
A wrongful death is essentially a personal injury case that results in death the injured victim is no longer living to bring suit for herself. S.C. Code Ann. §15-51-10 defines a “wrongful death” as one that is caused by “the wrongful act, neglect, or default” of another. A wrongful death can be filed against an individual or corporation that may be negligent in causing another person’s death.
Can my employer fire me for filing a workers’ compensation claim?
No. An employer cannot fire you for filing a workers’ compensation claim. Although South Carolina is known as an “at will” employment state (meaning that an employer can fire an employee for just cause), there are limited exceptions that prevent an employer for firing an employee for certain grounds. If you can prove you were fired specifically for filing a workers’ compensation claim, you have an employment retaliation claim against your employer.
Is a workers’ compensation claim the same as suing my employer?
No, filing a worker’s compensation claim is not the same as filing a lawsuit against your employer. In fact, South Carolina laws prevents an employee from filing a lawsuit against their employer and, thus, the workers’ compensation administrative system was developed to help employees who have been injured at work. Essentially, a workers’ compensation claim is an administrative claim against your employer’s insurance provider to insure you are receiving the appropriate medical and financial benefits you are entitled to. Your employer will not be held personally liable for anything surrounding your work related injury.
What types of benefits are you entitled to in a workers’ compensation claim?
The South Carolina Workers’ Compensation Act codified in S.C. Code Ann. § provides for several different types of benefits depending on the claimant’s injury, medical status and work status:
- Medical Benefits:
- Temporary Partial Disability (TPD): Temporary partial disability benefits are the least used and most employees are even unaware that these type of benefits exist. An employee is entitled to temporary partial disability when the employee is capable of working, but may have to return to work under restrictions that would result in her earning lower wages than she was prior to the injury. For example, if your work related injury limits the amount of hours you may be able to work or perhaps your injury restricts you from performing your current tasks and you are reassigned to a new position that pays less than you were making prior to your work injury, you may be entitled to benefits for the difference between what you were making prior to your injury and what you are able to earn after your injury. Under South Carolina law, you are entitled to temporary partial disability benefits equal to two-thirds the difference between your pre-injury wages and your post-injury wages. For example, if you were making $1,000 per week prior to your work injury and you are only able to make $500 after your work injury, the difference in your wages would be $500 per week and you would be entitled to two-thirds this amount.
- Temporary Total Disability (TTD): If an employee is completely unable to work due to your work injury, you will begin to receive temporary total disability benefits in lieu of your normal salary once you have been out of work for seven or more days. These benefits are equal two-thirds of your average weekly wage. You will continue to receive these benefits until your doctor determines that you have reached maximum medical improvement. If you have continued to receive temporary total disability for one-hundred and fifty days, your employer cannot terminate your benefits without requesting a hearing with the South Carolina Workers’ Compensation Commission. However, you cannot receive temporary total disability benefits for more than five-hundred weeks.
- Permanent Partial Disability (PPD): In certain types of serious injuries, you may be permanently prevented from returning to the job you were doing prior to your injury. In situations where you are able to return to work, but in a different capacity, your earning potential may be permanently restricted. For example, if you were performing some type of labor-intensive work prior to your injury but you are only able to perform deskwork after your injury, and your income is lower as a result of your job change, you may be entitled to receive permanent partial disability benefits for the difference in your wages. Most insurance companies will not voluntarily offer an employee permanent partial disability, thus, it is important that you get with an experienced South Carolina workers’ compensation attorney who can get you to the appropriate medical and vocational experts who can give opinions on your work status.
- Scheduled Member Disability: The South Carolina Workers’ Compensation Act sets for compensation based on a specific number of weeks for certain body parts. Your benefits are based on a formula that takes into account your average weekly wage, the body part that is injured and your impairment rating to the injured body part based on the physician’s opinion. In many circumstances, it is helpful to get a second medical opinion to assure you are receiving an appropriate impairment rating from your doctor.
- Total and Permanent Disability: If your injuries completely prevent you from returning to work, you may be entitled to total and permanent disability benefits. To determine whether you are deemed totally and permanently disabled, you will likely need to be evaluated by a vocational expert who will take into consideration your age, work experience, educational background, the nature of your injury and physical restrictions. Generally, the amount of benefits for total and permanent disability is equal to five-hundred weeks of your average weekly wage; however, you may be entitled to lifetime benefits if have suffered a brain injury or have become a paraplegic or quadriplegic.
- Death Benefits: If someone suffers a death do to a work related injury, those persons who are determined to be “wholly dependent” on the deceased may be entitled to compensation of five-hundred weeks of benefits plus certain burial expenses. The issue of determining who exactly is entitled to what benefits, if anyone, can be very complicated.
What should you do if you’ve been injured on the job?
First and foremost, if you have been hurt at work, you need to notify your employer or supervisor as soon as possible. The South Carolina Workers’ Compensation Act, pursuant to S. C. Code Ann. § 14-15-20, states that “[e]very injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a notice of the accident.” The statute goes on to state that an employee will not be entitled to benefits under the act unless the employer had knowledge of the accident within ninety (90) days thereafter, unless reasonable excuse can be found. In summary, South Carolina Courts have generally denied compensation to employees who failed to give notice to their employer within ninety (90) days of the accident.
What qualifies as “neglect” in a nursing home setting?
While nursing home abuse implies some type of intentional harm to a nursing home patient, nursing home neglect is generally described as sub-standard care to the individual that results in some type of harm or injury to the patient. Some of the most common types of nursing home neglect include:
- Emotional or Social Neglect: This can generally be described as a patient being ignored on a long-term basis or emotional abuse towards the patient resulting in harm or injury.
- Personal Hygiene Neglect: This can generally be described as a patient not receiving adequate bathing, cleaning, laundry, or any other forms of personal hygiene.
- Basic Needs Neglect: This can occur when a nursing home neglects to provide adequate food or water, or to keep a generally safe and habitable environment for the patient.
- Medical Neglect: This can occur when a nursing home fails to provide adequate attention, monitoring, prevention, or medical concerns that might result in bed sores, infections, blood clots, new development and diagnosis of chronic diseases, mobility concerns, slip and falls, and many others.
- Financial Neglect: Under certain situation, a nursing home or individual may have authority or control over the patient’s financial means. Neglect in this regards can include misappropriation of funds, stealing funds, forging of signatures, or coercing or deceiving an elderly in signing some type of financial documentation.