Agencies whether private, non profit or governmental, are liable for negligence in administering their respective programs. Their duties and standards of conduct are defined by the scope of these programs and what they have undertaken to accomplish. In the National Long Term Care Channeling Demonstration Program, two types of agencies can be distinguished by program scope. These are the channeling or case management agencies and the direct service providers.
A channeling agency’s scope includes assessment of persons who believe they need assistance and case management services such as, construction of a care plan, mobilization of resources to carry out the care plan, recruitment of formal and informal service providers, negotiation of the care plan with the client, follow-up, monitoring and reassessment. It is not within the scope of the channeling agency to undertake direct service, underwrite the safety or integrity of the client, or guarantee the behaviors of all direct service providers.
A direct service agency is responsible for providing services of a given quality and dimension. It has a duty to deliver such services in accordance with generally recognized standards which reflect professional competence. Sometimes these standards are explicitly articulated in professional codes, procedure manuals, official rules, texts and treatises, or the common law.
The term, “agency,” used in this manual refers to both types of organizations, those providing case management or those providing direct service. Sometimes channeling agencies may be the subject of illustrations while at other times direct service providers are referred to.
For agencies or individuals, liability for negligence takes place when there is:
- A duty or obligation or care which requires a certain standard of conduct;
- A failure to conform to that standard of conduct;
- A reasonable causal connection between the failure to conform to that standard of conduct and
- An actual loss or injury.
The discussion which follows presents a number of situations in which an agency and/or its employees and agents may be liable for negligence.
An agency is liable for the inadequate training or supervision of its staff, for the provision of faulty equipment, or for the inappropriate use of non-professionals or inadequately trained staff. Of critical importance to home care agencies is the potential liability of the agency for the negligent approval or provision of an inappropriate level of care.
An agency is also liable for the negligence of its staff members as long as they are acting within the scope of their employment. Thus, both the agency and the employee can be held liable in some situations. However, if an employee performs acts outside of the scope of employment, the agency will not be liable for such acts. At which point the employee steps out of the scope of employment is often difficult to determine. For example, an aide who stays after hours to provide further assistance to an aged patient, although initiated out of the employee’s own voluntary act, may well be held to be in the scope of employment. A negligent act performed by the employee after hours but performed while carrying out the agency’s program or objectives would lead to agency liability.
A different situation arises when a staff member acts outside the scope of employment. Suppose a home care aide decides to earn some extra income by tutoring high school students in the afternoon while the home care client naps. During the course of a tutoring session, one of the students injures the client. Since the tutoring of high school students is clearly outside the scope of the aide’s employment, the agency is not liable under these circumstances but the home care aide will be.
Agencies will also be liable for the negligence of supervisory staff who, while in the scope of employment, are negligent in the supervision or instruction of junior staff. The agency therefore, can be found negligent in three ways stemming from the same act. One, the agency’s failure to supervise or properly choose its supervisor; two, the negligence of the supervisor acting in the scope of his employment, and three, the negligence of the employee also acting in the scope of his employment who follows the supervisor’s instructions.
The agency may also be liable for the negligence of volunteers or employees of other agencies. A volunteer or other employee who is trained, directed, placed or otherwise controlled by the agency will be considered as if he/she were an employee of the agency. If such an individual is negligent in the scope of the agency’s work, the agency will be found liable.
The employees or volunteers of the agency will, of course, be personally liable for their own negligence. In addition, the agency may be liable as an employer for the same negligent act, as well as any contributorily negligent acts of its own, such as the failure to adequately supervise the negligent employee.
The agency will not be liable for negligent acts of the client or persons under the client’s control unless the agency has explicitly or implicitly agreed to, and failed to adequately monitor the client’s actions.
The health, mental status or number of hours of care received by a client may lead a court to conclude that the agency had a duty to adequately safeguard his/her behavior. The health and mental status of the recipient affects the duty of care which the agency must provide. It is to be expected that a physically or mentally frail client, is owed a greater duty of care than one who is less frail.
A home care agency may be responsible for the safety and adequacy of the premises where its staff works. Here, reasonableness will prevail. If the premises are patently hazardous, and the agency neither warns the employee or volunteer nor takes steps to remove, or assist the client in the removal of the hazard, it may well be liable for damages which result from the hazard. Note, however, that typically injuries which are work related are covered by Workmen’s Compensation. It may also be that the client and/or the landlord will be liable to the employee or volunteer depending upon the nature of the hazard and whose act or failure to act produced the hazard.
It is impossible to administer a program totally free from risk. Some below-standard conduct may occur, and it might be determined to be negligent. Obviously, the agency should make every effort to ensure adequate hiring, training, placement and supervision of staff and volunteers. The best form of protection will be the purchase of liability insurance which covers acts of negligence of the agency and all its employees. Agencies can contact Health and Welfare Councils, professional organizations such as the National Association of Social Workers, state nursing associations and individual insurance carriers to find out about the types of insurance coverage that can be purchased.
Additional safeguards such as professional review of service plans and supervisory systems will demonstrate, if a negligence suit should arise, the high degree of care exhibited by the agency. Although the degree of duty of care owed to a frail elderly person is high, the standard the agency will be judged by will be the reasonable level of professional service which similar agencies provide to such clients.