Can Hired Caregivers Sue Patients and Their Families?

Can you be sued by a hired caregiver who gets hurt while taking care of your loved one? A recent California court case highlights the legal issues at stake for families of older adults.

When caregiver Carolyn Gregory went to work in the home of Bernard and Loraine Cott, she probably didn't realize she was stepping into the same occupational hazard category as firemen, police offices, life guards and veterinarians, at least as far as California law is concerned.

During a 2008 struggle with Lorraine, an 85-year-old who has Alzheimer's disease, Carolyn's wrist was sliced by a kitchen knife. Carolyn has since lost feeling in several of her fingers, and has recurring pain due to the injury.

Carolyn took the Cotts to court, but learned a serious lesson about her legal employment status when the California Supreme Court ruled in August that she couldn't collect any damages for her injury beyond the workers' compensation insurance that covered the home care agency she worked for.

The Case

Most of the judges on the Court decided to accept legal arguments from lawyers representing Bernard and Lorraine. They were fighting to prevent Carolyn from collecting damages in what personal injury and workers' comp lawyers call "a third party claim" that allows the injured person to recover more than the limited amount paid by workers' comp insurance.

Mr. and Mrs. Cott were the "third parties" to the employment relationship between Carolyn and her home health care agency. The Cott's successful defense was: Carolyn knew what she was getting into; just like firemen, police, veterinarians and life guards know that they are risking serious injury or even death while on the job. These workers assume (take responsibility for) the risk of injury or death when they go to work every day.

Bernard had told Carolyn that his wife, Lorraine, "was combative and would bite, kick, scratch, and flail." Carolyn‘s duties "included supervising, bathing, dressing, and transporting Lorraine, as well as some housekeeping."

Bernard was not at home on the day that Carolyn was washing a large knife in the kitchen sink. Quoting from the Supreme Court's decision: "Lorraine approached her from behind, bumped into her, and reached toward the sink." When Carolyn tried "to restrain Lorraine, she dropped the knife, which struck her wrist."

Why the Cotts Weren't Liable

Honest and open communication between caregiver and client carried the day for the Cotts.

Carolyn claimed, "she was not specifically warned that Lorraine might approach her from behind while she was washing dishes."

While it's "true that a defendant who misrepresents or hides a hazardous condition is subject to liability," there was no claim of deception by Bernard. Carolyn conceded "that he informed her of Lorraine‘s combative tendencies." The Court concluded there is no way the family of an Alzheimer's patient "can reasonably be required to anticipate every variation of circumstance in which a disclosed risk might develop."

Carolyn also claimed that home health care workers should not be required to assume they are at risk for this type of injury because "the home environment lacks the specialized equipment and trained health care professionals found in institutions."

But the judges were not persuaded that Carolyn was any different from health care workers who are employed by institutions. "Caregivers are hired to protect the patients from harming themselves or others. If a patient injures a caregiver by engaging in the combative behavior symptomatic of Alzheimer‘s disease, the particular risk of harm that caused the injury was among the very risks the caregiver was hired to prevent."

The judges acknowledged that Carolyn was "not a doctor or a nurse. However, it is her occupation to care for Alzheimer‘s patients. We do not hold that anyone who helps with such patients assumes the risk of injury. The rule we adopt is limited to professional home health care workers who are trained and employed by an agency."

Lessons for Family and Professional Caregivers

This case should be alarming for people who hire home health workers and pay them under the table, without any workers' compensation coverage. In this case there was workers compensation coverage provided by the home health agency that employed Carolyn.

What happens if there is a serious injury, and no insurance covers the worker? Without that coverage, the results could be even more devastating for the caregiver and the family.

The case also raises awareness for home health care agencies, because the quality of training they provide to their workers is going to be looked at when accidents and injuries happen.

Because of the training issue, the one judge who disagreed with how this California case ended believed that Carolyn should have been given her day in court to prove that the home health agency didn't train her adequately. "Her training consisted of watching a video and visiting a nursing home with Alzheimer‘s patients. She had never worked in a nursing home or hospital. She did not have certification as a nurse or nurse‘s aide, and, having worked only in single-family homes, had never worked under the direct supervision of a registered nurse or health care professional. The lack of supervision from a registered nurse or medical professional continued while she worked for the Cotts."

This lone dissenting judge pointed out that in most other states, the assumption of risk rule "is limited to professional home health care workers who are trained and employed by an agency." If families who hire home care workers "must establish that a home health caregiver received adequate training before primary assumption of risk is triggered, in this case," then Carolyn should have been able to take her case to a jury.

Another judge on the Court who agreed that Carolyn had assumed the risk that her wrist would be slashed by a kitchen knife still wondered how "low-paid home health care workers [can] receive adequate protection" from serious injuries. It's "likely that some home caregivers will face workplace hazards without adequate compensation."

He pointed out that home care workers don't have the bargaining power of police or firefighters. When employers in other occupations shift the risk of injury onto the shoulders of workers the often end up "raising the wages or increasing benefits such as insurance." But that is not going to happen in home care, because of the "neediness and limited bargaining power of these workers."

In the end, the California Supreme Court judges said they had to protect the families who are trying to take care of loved ones at home. "If liability were imposed for caregiver injuries in private homes, but not in hospitals or nursing homes, the incentive for families to institutionalize Alzheimer‘s sufferers would increase."

John L. Roberts, J.D., is an Elder Law Attorney serving clients in Hampden County, MA. After practicing for 15 years, he confronted the challenges of family caregiving when his own father developed dementia. The experience transformed his practice, enabling him to help clients who are family caregivers from a place of true understanding.

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