Community Services and Long-Term Care: Issues of Negligence and Liability. Case Examples


The Bathtub Slip, Trip and Fall Case
Client Smith slips, falls and is injured while being helped into the bathtub by Helper Jones. Is the agency liable if Helper Jones is not at fault? Who is liable if Helper Jones is at fault?

Where the helper is not at fault:

There is little likelihood of liability to either the helper or the agency.

Where the helper is at fault and, therefore, negligent:

  1. Liability will increase as the degree of negligence increases;
  2. Liability will more likely be the agency’s if helping the client into the bathtub was an expected duty of the helper;
  3. Liability will be less if the client asked or urged the helper to assist her.

The Stolen Ming Vase Case
Helper Jones conspires with Accomplice Green to have Green steal Client Smith’s valuable antique Ming Vase. In what way is the case manager who arranged for Helper Jones liable?

Ordinarily, civil liability (in addition to criminal liability) would be limited to the helper unless there was some showing of gross negligence on the part of the agency or, worse yet, complicity of the agency in the theft. Careful screening of helpers would foreclose any possibility of negligence. Screening workers can be a relatively simple task. Questionnaires, interviews and requests for references which seek to elicit information about knowledgeability, handicaps which may limit service, experience, and criminal record can go a long way toward protecting the agency and its case managers.

The Ming Vase Conspiracy Case
Helper Jones, steals Client Smith’s Ming Vase and disappears. Investigation in the case reveals that Jones is a felon who has been convicted of stealing from sick elderly people living alone. Is the case manager or the agency liable for Client Smith’s loss? Is the case manager or the agency responsible for screening informal workers prior to assignment?

It does make a difference whether the helper is an employee of the agency or if the agency is a “broker” that brings the client and the helper together. Even as a “broker” good practice would dictate that the agency: a) give the client information about the helper, and b) make some inquiry about the helper’s interest, abilities and past history.

However, if the client identified her neighbor, and chose her as a helper, and assuming the client is legally competent and is aware of the helper’s history, the agency is not liable.

The Ming Vase Case #2
Client Smith discovers that her valuable antique Ming vase is missing and accuses Helper Jones of stealing it. Jones is arrested, tried and convicted for the theft. Who is liable for the loss?

If the helper is accused and convicted of theft and has indeed stolen something from the client, then the helper is liable both civilly and criminally. If the helper is accused of theft and is innocent, the victim of the theft is like all other victims and will stand the loss himself or herself. It would be very hard to assess any liability on the part of the agency.

The Drug Reaction Case
The VNA which serves Client Smith, trains Helper Jones to administer medication to Mrs. Smith who suffers an adverse reaction to the drugs Jones administered. What are the liability issues?

In general, the administration of medication for non-institutionalized patients is a matter under the control of the patient. The client may be unable to self-administer medications. If so, in designing a care plan which arranges for the VNA to train the helper to regularly administer medications to the client, it is the responsibility of the case manager in the channeling agency to contact the client’s physician and explain that the client cannot self-administer medication and that the service will be provided by a helper. The case manager would then obtain information from the physician detailing the administration of the medication including side effects, dosages, and anything else. The case manager would then send a written confirmation of this conversation to the physician detailing the agency’s understanding of the administration of the medication, side effects, and other important information.

The physician could be asked to advise whomever would be directly administering the medication to the client. As part of normal practice, the physician should explain the risks of the medication to the client, take notice of any changes in the client’s condition, and alter the medication accordingly. If this type of procedure is followed in cases in which helpers are trained to administer medication, the agency will have good defense against charges of negligence.

The Hasty Helper Case
Helper Jones goes to the medicine chest, grabs a bottle of pills, does not read the label and mistakenly gives Client Smith a massive dose of a laxative while believing it is Mrs. Smith’s diuretic. As a result, Mrs. Smith suffers terrible diarrhea, causing her to become incontinent, to suffer pain and embarrassment and to become dehydrated, febrile and disoriented.

Helper Jones may be liable herself if she has negligently given Client Smith the wrong medicine thereby causing the client harm. If the VNA has properly trained Helper Jones in administering medications, the agency will be protected. If, however, the case manager has arranged for an illitrate or blind helper, and even if the VNA has given proper training, the channeling agency and the case manager may well be liable.

The Dropped Client Case
Helper Jones improperly lifts Client Smith from his chair causing Smith to fall and suffer a broken leg. Who is liable?

Again, ordinary principles of negligence apply. If the helper was grossly negligent and lifted the client incorrectly, despite reasonable screening and training by the case management or provider agency or despite appropriate instructions and supervision by either agency, about what the worker could or couldn’t or should or shouldn’t do, the client would have a course of action against the helper. The agencies would have a reasonable defense against suit by the client by virtue of the screening, training, and supervision they provided.

The Helper’s Hernia Case
Helper Jones lifts Client Smith, an obese man, from his chair and suffers a hernia as a result thereof. Who is liable?

It will make a difference whether Jones was contributorily negligent or not, whether Jones had any instruction or warning about how to lift Smith, or whether Jones is an agent of Smith’s, an agency volunteer in a formal program, or a neighbor or friend selected by Smith and included in the care plan. If the injured helper is a volunteer or family member and there is no employer/employee relationship to the channeling agency, there would be little claim against the agency. The volunteer has assumed the risk.

If the volunteer is covered by some kind of general insurance policy by the agency, his injury may be covered.

To avoid confusion about the risks assumed and insurance coverage related to voluntarism, the agency should, in its initial agreements with all volunteers, be totally clear regarding the rights, responsibilities, and risks carried by the volunteer and the agency. The agency should prepare a handout which summarizes pertinent facts about the liability of volunteers and an agency staff member should be assigned the responsibility of reviewing this information with volunteers.

The Tidy Helper Case
Helper Jones in cleaning Client Smith’s apartment moves a footstool from its regular place and Client Smith trips over it and breaks her arm. Who is liable?

If the helper moved a piece of furniture and this action was not malicious, deliberate or grossly negligent, it falls into the category of an accident. If it were malicious or grossly ignorant, as for example, moving furniture in the path of a blind client, then, it would seem, that a suit might be possible against the helper. If the agency instructs volunteers and helpers about predictable hazards it will go a long way toward protecting itself. Once again, it depends upon the exercise of prudence and care one the agency has taken on responsibility for a care plan.

The Frozen Pipes Case
Helper Jones leaves the door to Client Smith’s home open in the dead of winter just before taking Smith to the airport for her departure to her nephew’s home in Florida where Smith will visit for a week. All the pipes in Smith’s home freeze. Who is liable?

There may be some liability on the part of the helper, although it is doubtful that any liability would attach to the agency. This, of course, will depend on the relationship between the agency and the helper and the understanding of the client. Once again, a rule of reason is a good rule to apply. People are expected to be reasonably careful and attentive. In this world one frequently has to pay for stupid mistakes. Reasonable mistakes, whatever they may be, are dealt with more rationally, and are more apt to be forgiven. How much the repair cost and how grievous the error is will make the difference. Whether Smith owns her home or not may make a difference, as will the presence or absence of a homeowner’s insurance policy covering the premises.

The Checkbook Assistance Case
Helper Jones (either a volunteer or worker under contract to the client) assists Client Smith in drawing cash from the bank, depositing checks, paying bills, and balancing Smith’s checkbook. Helper Jones does this “informally”, i.e., outside of any formal agency care plan. Client Smith is an alert elderly woman who appreciates the help. What kind of liability arises for the helper?

If the volunteer or contracted individual helps a client with money management without a formal arrangement it would depend, in large part, whether the helper was an agent of the client or not. The best arrangement is for the client to understand that he or she is entering into an agreement of agency1 with the volunteer or contracted individual and that the volunteer or contracted individual works at the direction of the client. If the client is not competent to make such delegation then the volunteer or contracted individual is proceeding without authority unless he has received it from some other person who holds control of the client’s funds. If the individual is a representative payee,2 for example, and absconds or misapplies the money, then he or she has breached his/her duty to the client and probably to the Social Security Administration and would be liable for restitution, and probably liable in a criminal action as well.

The Pet Dog Case
Client Smith has a dog who has been her constant companion for four years. Helper Jones negligently permits the dog to play in the street. The dog is hit by a car and is killed. What is Jones’ or the agency’s liability?

It depends on the degree of negligence, what the helper has agreed to do, and at whose direction the helper proceeds. Helpers and agencies are not generally liable for the well being of pets unless they assumed a duty to care for such pets and had failed in that duty in very obvious ways.

The Eye Drops Case
Case manager Good reasonably reduces services and arranges for the replacement of formal caregiver Brown by an informal caregiver, Jones. Client Smith is properly informed about the change, agrees to the new arrangement and signs the care plan. The care plan includes giving Client Smith eyedrops for an eye infection. Jones, although carefully and explicitly instructed in the administration of the drops and the importance of giving the medication in timely fashion, negligently does not do so. This omission results in exacerbation of the infection, pain and an ultimate reduction in Client Smith’s visual acuity. Who is liable under these circumstances?

Liability Depends On:

  1. The degree of negligence, if any, visited on the client by the helper;
  2. The kind of knowledge the case manager might reasonably have been expected to have;
  3. The degree to which the client can be said to have “assumed the risk”;
  4. The nature of the helper’s fault;
  5. The relationship between the helper and the client and/or the agency;
  6. Expectations of the informal helper.

If there is good faith effort made by the case manager (and the formal provider) to provide reasonable assistance through an informal helper, the case manager and both channeling and provider agencies will probably be insulated from a successful suit by the client. That would seem to be the case here. If, on the other hand, to use an extreme example, the case manager arranges for a neighbor to help the client with her bathing and the neighbor is known to have violent outbursts of temper resulting in assault, and/or suffers from some disability which would impede her ability to help the client in and out of a bathtub, then the agency and the neighbor must be liable.

The Reduced Service Case
Following the reduction in service and the shift from a formal caregiver to an informal caregiver, Client Smith’s condition worsens, even though the care plan was adequately carried out. Is the case manager or the agency liable?

If the care plan were carried out but the client died of something that should have been identified but wasn’t, then it is conceivable that negligence might be established. If, however, everything was in order and the client died despite the best and reasonable efforts of those charged with his or her care then it is highly unlikely that liability will lie against either the agency or the case manager. In fact, liability would only result from negligence in the assessment, the care plan and the delivery of services. The reality of the situation with the elderly is that there frequently are intervening variables which are not predictable. The best guideline is to make reasonable efforts to assess needs and resources, develop a suitable care plan, follow-up on and monitor services and periodically reassess the client’s needs. The agency’s duty depends upon the agreements between the agency and the client, the state of the art and the resources available.

The Volunteer Driver Case #1
Volunteer Jones is driving his own car to Client Smith’s house and accidentally hits a telephone pole causing damage to his car and himself. To what extent is the agency liable?

In general, volunteers in transit to or from clients’ homes will be responsible themselves for damages and/or injuries incurred on such trips. However, if volunteers are brought into the agency’s office for the purpose of receiving instructions for the day’s visits to various clients and the accident occurs between the agency office and the client’s home, then liability may lie against the agency. In other words, if there is a gathering analogous to a labor “make-up”, or morning call at a police precinct, and the informal workers are proceeding to “duty” from place to place, the agency may have some liability. The issue is whether the travel is at the direction of the agency.

The Volunteer Driver Case #2
Volunteer Jones goes to the supermarket in her car to buy groceries for Client Smith. On the way she hits a telephone pole damaging her car and injuring her arm. Is the agency liable?

Any injuries sustained while the volunteer is on an errand for the client is the responsibility of the volunteer, unless the agency has specifically undertaken to designate the volunteer as its representative doing its bidding. Where volunteers use their automobiles to carry out tasks in formally organized volunteer programs, many agencies have secured blanket insurance policies to protect their volunteers or have made sure that volunteers carry their own insurance coverage for use of their automobiles for volunteer activities. In some urban areas with Volunteer Bureaus and/or Health and Welfare Councils, arrangements have been made for health and social agencies to secure such policies from a single broker or insurance agency.

The Mugged Informal Helper Case
Informal Helper Jones assists Client Smith who lives in what is known to be a high crime area. Upon leaving Smith’s home one afternoon, Jones is mugged suffering both property loss and personal injury. Is the agency liable?

Liability will depend upon the relationship between the informal helper and the agency and/or the client Ordinarily, neither the agency nor the client will be liable for injuries or losses suffered by the helper in transit to or from home (but see response to The Volunteer Driver Case #1). However, given the knowledge of a high crime area, the risks (and their assumption) ought to be a matter of explicit discussion between the agency and the helper. If possible, the agency may seek to secure a blanket insurance policy to cover such risks.

The Volunteer Driver Case #3
Volunteer Jones is driving Client Smith to an appointment with Smith’s physician. Enroute they are involved in an automobile accident with another car. What are the liability considerations if:

  1. Jones was clearly negligent because he ran a stop sign?
  2. Jones was clearly not at fault?
  3. In (1.) and (2.) Jones was driving an agency car? His own car? The client’s car?
  4. In (1.), (2.) and (3.) Jones is injured? Smith is injured? The other driver is injured? A pedestrian is injured and/or the other driver’s guest is injured?
  5. There is neither property nor personal injury as a result of the accident, but Smith falls to the ground getting out of the car as a result of Jones’ negligence? As a result of Smith’s negligence? As a result of their combined negligence? As a result of a defect in the car door?

The questions posed above indicate that the variety of possible scenarios and hence outcomes is enormous. In addition to the factors suggested by the questions, one must take into account the particularities of the law in the respective states. These include whether or not the state is a “no fault” state, a contributory negligence state, a comparative negligence state, or a “guest statute” state, to list some examples.3 Thus, one must look to some general principles and actions which will do most to protect the agency.

First, the agency should make certain that all persons who may be driving automobiles and transporting clients are (a) licensed, (b) insured by their own insurance carriers (c) careful drivers with good driving records, and (d) instructed in the special considerations of transporting those who may be frail, disabled, disoriented, or may have other special characteristics requiring attention.

Second, if possible, the agency should arrange for the state highway department or Automobile Association of America to set up a training session on defensive driving for these drivers.

Third, the agency should contact its insurance broker, the volunteer bureau and/or the Health and Welfare Council about automobile insurance policies which cover volunteers who drive their own cars to transport clients or who otherwise drive in behalf of the agency.

Fourth, the agency should check its automobile policy to ascertain coverage of volunteers driving an agency car.

As for where liability lies in any number of the situations, proper insurance protection is crucial. Liability can be assessed against the driver, the driver’s employer or principal (e.g. if the driver was an agent of the agency as opposed to being its employee), the owner of the vehicle, or a negligent party such as a driver of another vehicle. When suits are brought and claims made, plaintiffs will go for what is colloquially called, “the deep pocket”. Sometimes juries make awards because they believe “the deep pocket” can afford it. Thus, insurance is important.

Obviously, volunteers deserve protection as much as clients do. Insurance coverage for them should be clear.

In general, while the variety of automobile accident scenarios is awesome, it is an area in which insurance coverage will take care of virtually all situations. These can be held to a minimum by good driver training and instruction in what to do in the event of an accident.

The Stumbling Client Case
Volunteer Jones accompanies Client Smith to the doctor’s office. Client Smith is ambulatory with a cane but trips at the curb, falls and breaks her arm. Jones was next to Smith but did not have hold of her and could not prevent the fall. Is the agency liable? Is Jones liable?

For escort services there is a difference between a volunteer and a paid worker. Volunteers will not be held liable unless they are willfully and grossly negligent. If the volunteer is injured he will be liable for injuries to himself unless he can fix liability on account of negligence on a third party. In general, the agency is not responsible to underwrite or insure the safety of the volunteer. Should if wish to do so, the agency may wish to secure blanket accident or medical payment insurance policies for its volunteers.

Injuries suffered by paid employees are generally covered under Workman’s Compensation laws if those injuries occurred in the course of the employee’s work.

If the client is injured while in the company of a paid employee, and if the injury was a result of the employee’s negligence, both the employee and the agency would be subject to suit. If the injury was the result of someone else’s negligence, for example, the driver of another car, under ordinary circumstances, no liability would attach to the agency or the employee.

The Rough P.T. Case
The case manager arranges with Physical Therapist Brown, a formal provider, to evaluate Client Smith’s need for physical rehabilitation and then for Brown to provide these services. Client Smith is an obese patient suffering from multiple sclerosis and severe osteoporosis. Therapist Brown, ignoring Smith’s complaints of pain, negligently exercises Smith’s arm which, as a result, suffers a simple fracture. Who is liable?

If the provider was a professional and the case manager made an assignment that was beyond the capabilities of the provider, then the provider would be responsible to decline to take on the assignment, or at least give notice to the channeling agency. If the case manager’s role was simply to refer a client to a physician, or other worker or therapist not under contract, and primary relationship was between that individual and the client, the failure of that individual to adequately perform would not be the responsibility of the channeling agency. There might be an exception depending upon organizational arrangements. If the channeling agency were a large umbrella type agency and made the referral to an internal unit then it is conceivable that the agency might be included in some kind of legal action.

The Deadbeat Client Case
Client Smith, a competent person, agrees to participate in the client payment program for services and signifies such agreement by signing the appropriate client payment form and the care plan. Client Smith then refuses to make the agreed upon payments. Who is liable?

The client is liable and judgment can be sought against the client. The client payment program (also called the out-of-pocket-payment program) is a requirement of the channeling demonstration complex models. In this program, clients who meet specified income criteria are expected to pay for, or share in, the cost of certain services. The client payment program coordinates health insurance co-payment with those social services/income maintenance concepts which assure that client payments reflect available income and individual service needs.

A reasonable method for agencies to follow in order to avoid problems with the payment program is to:

  1. Encourage full discussion with clients on how the payment program works;
  2. Prepare a simple form which the client can sign acknowledging his obligation to participate in the payment program;
  3. Develop a simple and humane client payment billing system, which includes the above signed statement on each client payment bill as a reminder to the client;
  4. Develop a mechanism by which clients who are delinquent in their accounts can rectify the situation.

These recommendations have been incorporated into the procedures adopted by channeling complex models. In these agencies, case managers are responsible for offering a full explanation to clients of how the client payment program works including information on when payments are due and when termination willoccur as the result of failure to make payments. In addition, case managers must secure client agreement for payment in writing and determine, in conjunction with the client, the monthly payment amount as well as when initial payments will begin. Case managers are responsible for negotiating with the client a new payment amount should there be any change in the cost of the care plan, the client’s income or the protected income amount.

It is the role of case managers to make a clear to clients that they are expected to make payments on a fixed schedule and that when outstanding payments are equal to or greater than a period of 60 client days in the channeling demonstration, service must be terminated.

Case managers participate in termination case conferences should termination for non-payment be anticipated and inform the client of termination due to non-payment. In cases of extreme hardship, administrative exception to termination can be sought by case managers. Finally the case manager is expected to participate in the appeals process resulting from termination due to non-payment.

Adherence to these procedures will in all likelihood, free the agency from findings of liability in cases where client services are terminated as the result of non-payment and harm results therefrom.

An additional safeguard built into the channeling demonstration is the separation of functions. Case managers carry the responsibilities outlined above. The direct handling of payments and the establishment of payment schedules for clients who are delinquent in payment are activities which fall to the financial staff of the channeling agencies. This separation of activities frees case managers from any findings of conflict of interest or any liability findings connected with the mishandling of client funds.

The After-Hours Emergency Case
Caregiver Jones arrives at Client Smith’s home on Saturday morning and finds Smith feverish, short of breath and somewhat incoherent. The channeling agency is closed for the weekend and Jones cannot reach anyone from the agency. What is the channeling agency’s responsibility to Smith for emergency services?

The duty of the channeling agency is determined in part by what it, as a professional care agency, should be able to anticipate. Providers, formal or informal, should be furnished (unless the formal provider already has developed procedures) general instructions on how to proceed in the event of an emergency, including what to do during and after channeling agency regular hours. The course of action may vary from contacting the emergency service of the mental health agency, to admission to an emergency room at a general hospital, or any other reasonable approach. What should be done is that which would be done by a reasonably informed care provider in the absence of a channeling project. Ordinarily, the channeling agency would be insulated from liability if it had made some reasonable provisions for emergencies where emergencies can be anticipated. Obviously, the agency cannot anticipate all emergencies or be held liable for their consequences (e.g., earthquake, airplane crash into the dwelling, boiler explosion, volcanic eruption, etc.).

The Hospital Admissions Papers Case
Client Smith suffers an acute attack of persistent abdominal pain and upon advice of her physician is taken to the hospital. The hospital requires that a family member sign admission forms before Client Smith is admitted to the hospital. Family members are all out of town and cannot be reached. The hospital admissions worker insists upon the case manager signing the admission forms. Should the case manager do so?

The general rule should be that case managers should not sign any hospital admission forms, unless the channeling agency is prepared to underwrite hospital costs which go beyond Medicare or other insurances. The hospital, in most instances, is required to admit a patient for emergency care. Where there is serious conflict with hospital personnel, the case manager should attempt to involve higher hospital authority.

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