California Court Blocks Home Health Aide’s Injury Claim

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Medicaid Eligibility Attorney

Fredrick P. Niemann, Esq. of Hanlon Niemann Issues Warning to Families Providing Care to Loved One With Private Caregivers

If you have a home health aide or caregiver taking care of a family member, you should read this decision and immediately contact your homeowner’s insurance agent and get “casual employment/employee workers compensation and/or liability insurance for your home health aide.

A home health aide for a woman suffering from Alzheimer’s disease can’t sue the homeowners over a job-related injury, the California Supreme Court has ruled.

The court—possibly the first in the country to address whether in-home caregivers for Alzheimer’s patients can sue under such circumstances—concluded that Carolyn Gregory bore the same “primary assumption of risk” as a caregiver who worked in a hospital or other institution.

“California and other jurisdictions have established the rule that Alzheimer’s patients are not liable for injuries to caregivers in institutional settings,” Justice Carol Corrigan wrote. “We conclude that the same rule applies to in-home caregivers who, like their institutional counterparts, are employed specifically to assist these disabled persons.”

The opinion called upon the California Legislature to consider laws that would better protect caregivers — particularly since Alzheimer’s patients have been known to become violent.

The number of persons afflicted with this disease can only be expected to grow in coming years. Training requirements and enhanced insurance benefits for caregivers exposed to the risk of injury are among the subjects worthy of legislation investigation.”

Click here to read the decision:

http://pdfserver.amlaw.com/nlj/NLJ%20CAREGIVER%200805.pdf

In this case, the caregiver sued after her client, age 85, came up from behind her as she was washing dishes. In attempting to restrain her, the caregiver sliced her own hand with a large knife. The caregiver’s husband had been told that the aged client could be “combative and would bite, kick, scratch and flail.”

The caregiver, who worked for a home health care agency, sued the family for negligence and battery. The Superior Court Judge granted summary judgment against her, and was affirmed by an intermediate state appeals court.

The Supreme Court affirmed both lower court decisions, citing public policy changes in recent years that discourage institutionalizing the mentally disabled.

“The majority opinion walked carefully through some very difficult issues and arrived at a decision that is consistent with prior law and fair under the circumstances.”

Counsel for the caregiver acknowledged that the decision was based on public-policy considerations.

“Their primary consideration was staying away from decisions that would discourage in-home caregiving in the future, because the burden on government entities and care facilities is very high these days,” he said.

But the court limited its ruling to professional home health care workers who are trained and employed by an agency—not all caregivers.

Here’s what I want you to remember: “The decision does not apply, for instance, to caregivers hired directly by homeowners or to situations in which caregivers aren’t adequately warned about risks, says Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, New Jersey Medicaid Eligibility for Long Term Care Attorney.

To discuss your NJ Medicaid Eligibility or Alzheimer’s matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.