Addressing Liability Issues in Consumer-Directed Personal Assistance Services (CDPAS): The National Cash and Counseling Demonstration and Selected Other Models. Addressing Liability Issues in Consumer-Directed Personal Assistance Services (CDPAS): The National Cash and Counseling Demonstration and Selected Other Models : Table 5


: Table 5

TitleState DatePlaintiffDefendantDecision LevelFacts & Procedural HistoryDispositionPrevailing PartyComments
Caulfield v. Kitsap County 29 P.3d 738WA 2001Consumer who had multiple sclerosis and was severely disabledDepartment of Social and Health Services (DSHS), county, and caregiverCourt of AppealsThrough the Community Options Program Entry System, a Medicaid waiver program, the state's DSHS paid for the consumer to receive personal care from an in-home caregiver. Prior to this, the consumer had lived in a nursing facility and was monitored by a DSHS caseworker, who arranged for the transfer to in-home care and hired a caregiver for the consumer. The caseworker failed to visit the consumer until more than a month after his transfer, despite assurances that she would continue to be his caseworker, and at this visit, she observed major adverse changes in the consumer's condition and heard the consumer's complaints about his caregiver. The caseworker transferred the case the next day to a county social worker who noted problems that needed "immediate attention." Nonetheless, the county social worker never contacted or visited the consumer. Eight days later, the caregiver called because of concern about the consumer's condition and was told to call 911. The consumer was admitted to the ER with multiple critical problems. The consumer settled with DSHS prior to trial. At trial, the jury returned a verdict finding that the county, DSHS, and the caregiver were negligent and proximately caused consumer's injuries.On appeal, the county contended "that it owed Caulfield no duty because it was immune under the public duty doctrine and Caulfield never showed that one of the exceptions to the public duty doctrine applied." The Court of Appeals disagreed, holding that the special relationship exception to the public duty doctrine applied: "Caulfield's relationship with his County case manager involved an element of 'entrustment' by virtue of the dependent and protective nature of the relationship.... Given Caulfield's inability to take care of himself, the case manager's responsibility for establishing and monitoring his in-home care plan took on great significance....This responsibility gave rise to a duty to protect Caulfield and other similarly vulnerable clients from the tortious acts of others, especially when a case manager knows or should know that serious neglect is occurring. This duty is limited by the ordinary care a case manager would take in similar situations and by the concept of foreseeability."P Jury verdict for the consumer upheld.The court found that the "special relationship" exception existed under both state law and the Restatement (2d) of Torts §315 (1965) ("There is no duty...unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.") This is the only reported case applying this doctrine to a government agency responsible for supervising home care services.
Couch v. Visiting Home Care Service of Ocean County 746 A.2d 1029NJ 2000ConsumerCounty department of health and home care agencySuperior Court, Appellate DivisionThe plaintiff, who had become a quadriplegic as result of MS, developed a serious decubitis ulcer. The county department of health had been providing him with home nursing services, and a private home care agency had been providing him with home health aide services (initially, the home health aide services were paid for by Medicaid and Home Care Expansion Program monies; the patient assumed the cost when the HCEP program ended). Both the county and the home care agency terminated their services because they believed the patient needed more intensive care than they were able to provide. The trial court (TC) ordered the defendants to continue services. However, it is unclear from the opinion what was the legal basis for the plaintiff's claims and the TC "cited no authority for his action."On appeal, the county pointed "to the well recognized principle that actions of a public body, particularly within its field of expertise, are entitled to a presumption of validity." However, the appellate court was "persuaded that the real issue is the right of these medical providers to withdraw from a case when in their professional opinion it would be improper and unsafe to continue." The appellate court ruled that if on remand the county and the agency still wished to withdraw home care services, they should be permitted to do so, but the court's ruling relies on the agreement by the county department of health at oral argument that it "accepted the responsibility for arranging continuing care" and the county's representation to the court that space for the plaintiff was available in a nursing home.Ds County not required to continue providing home care services.The appellate court deferred to the county's medical judgment because it did not "abandon" the patient: "If defendants, or either of them, feel that in the professional judgment of the nurses who must manage the case, they cannot properly and ethically continue their care, provisions must be made to furnish plaintiff with appropriate alternative in-patient 24 hour care or to furnish plaintiff with a reasonable time in which to make his own alternative arrangement. The ultimate decision is for him."
Pettit v. State of Nebraska 544 N.E.2d 855NE 1996Chore provider for elderly and disabled personState Department of Social ServicesSupreme CourtPlaintiff, a chore provider for an elderly and disabled individual employed under a Medicaid waiver program, injured her lower back while providing chore services. She sued the state DSS for workers compensation benefits based on her claim that she was an employee of the DSS. The Workers' Compensation Court found that she did not prove she was a DSS employee, and the Court of Appeals reversed.The Supreme Court reversed the Court of Appeals and held that there was sufficient evidence to support the determination of the Workers' Compensation Court. A DSS employee had informed the plaintiff that she was an independent contractor and that the consumer was her employer. The consumer approved hiring the plaintiff as her chore provider and she had the authority to fire her.D State not liable for workers' compensation benefits.This case supports the argument that a Medicaid recipient who exercises the right to hire, fire and supervise a personal assistant is the employer of the assistant, and that the assistant is not an employee of the state.
Reeder v. State of Nebraska 578 N.W.2d 435NE 1998ConsumerState through its department of social servicesSupreme CourtThe consumer sued the state department of social services for injuries (decubitis ulcers on his feet which may require amputation) allegedly caused by the negligence of a licensed practical nurse (LPN) under a Medicaid waiver program in Nebraska. The consumer had hired the LPN, but the state had allegedly checked her credentials, approved her hiring, and developed a care plan for the consumer. The consumer sued the DSS claiming: (1) respondeat superior liability for negligent care by the LPN; and (2) that the DSS "had a separate, independent, non-delegable duty to supply [him] with a care provider fully capable of meeting all his daily needs." TC granted DSS's motion for summary judgment (SJ).The Supreme Court agreed with the TC that DSS did not have any such non-delegable duty, but it reversed on the issue of respondeat superior, holding that whether the LPN was an employee of DSS or an independent contractor was a question of fact for TC.Reversed and remanded to the TC. 
Reeder v. State of Nebraska 649 N.W.2d 504NE 2002ConsumerState through its department of social servicesCourt of AppealsOn remand, TC considered the question of whether the LPN was an employee of DSS or an independent contractor, but did not consider the possibility that Reeder (the consumer) was the LPN's employer. TC concluded that the LPN was an independent contractor and that the state therefore was not vicariously liable for the LPN's alleged negligence.On appeal, the Court of Appeals upheld TC, noting that factors that supported independent contractor status included: (1) DHHS did not exercise a right of control over Perales (e.g., "DHHS does not oversee or direct the services a provider performs for a client because the physician's order determines the nature and extent or services"); (2) "Perales' completion of her duties was not directly supervised by DHHS but was actually supervised by her client;" (3) Peralis was working as a skilled provider; and (4) DHHS was not in the business of providing health care.D State not liable on any of P's theories.Like the Supreme Court in Reeder I, the Court of Appeals rejected the plaintiff's argument that the state had a non-delegable duty to Reeder.