Can a caregiver sue an Alzheimer’s patient?
A paid caregiver hired through an agency cannot sue an Alzheimer’s disease patient for injuries sustained while caring for that patient, as long as the home health aide has been warned of any risks – which he or she would voluntarily assume – and the injuries are inflicted as a result of symptoms of the condition. This is the ruling that the California Supreme Court reached last month in a 5 to 2 vote. “Those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront,” Justice Carole A. Corrigan wrote. “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 decision came as the resolution of a lawsuit filed by healthcare worker Carolyn Gregory against Bernard and Lorraine Cott of West Los Angeles. In 2005, Bernard hired Gregory through an agency to care for his 85 year old wife at home, as well as tend to the house. Flash-forward to 2008 when Lorraine bumped Gregory from behind while the latter was doing the dishes; during the clash, Gregory’s wrist was cut by a knife she’d been washing. Her lawyer said that she lost feeling in a thumb and two fingers and developed constant pain in her wrist and hand. In addition to getting workers’ compensation, the home health worker sued the couple for negligence and premises liability, and for battery. Since the Cotts both passed away last year, the case was defended by their homeowner insure.
During the trial it was noted that Gregory, a trained Alzheimer’s caregiver, knew that patients with this condition can be prone to violence. More specifically, it was established that Bernard Cott had warned her that Lorraine “would bite, kick, scratch, and flail.” However, Gregory argued that she sustained her injury in her capacity as a housekeeper and not as a caregiver, to which Corrigan replied that “if If Gregory had been retained as a housekeeper, primary assumption of risk would not bar her action because she would not have been hired to manage the risks posed by Lorraine’s dementia”.
“But Gregory,” the Justice added, “worked for a home health care agency, not a housekeeping service. The circumstance that her duties included some housekeeping does not alter the central reason for her employment: Lorraine’s inability to care for herself due to Alzheimer’s disease. This fact establishes their relationship as caregiver and patient, and supports the application of primary assumption of risk. It is undisputed that Gregory’s duties included constant supervision of Lorraine, to protect not only Lorraine but also Bernard and Gregory herself.”
Gregory also invoked a distinction between home health care workers and those working in institutions, and claimed that the training she received from the agency was not sufficient. Corrigan didn’t find any of this persuasive at all, saying that regardless of the setting, caring for Alzheimer’s patients is the “nature of the (worker’s) activity,” which includes protecting the patient from harming themselves and others. According to Corrigan, “California and other jurisdictions have established the rule that Alzheimer’s patients are not liable for injuries to caregivers in institutional settings,” and “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.” Moreover, Gregory didn’t express any reservations concerning the quality of her training during her deposition testimony.
Justice Goodwin Lin agreed with Corrigan, writing that “what tips the balance in favor of primary assumption of risk is that the tort system does not appear to be the proper forum for ensuring adequate compensation for on-the-job injuries suffered by home health aides, at least in cases like this one.” He added that “given the broad scope of the workers’ compensation scheme, which precludes Gregory from suing her employer in tort, courts have limited risk-allocation mechanisms to address the difficult problems this case raises. I am reluctant to push these problems into the tort system because that approach conceives of cases like this one as private disputes between low-wage workers and ordinary families who are poorly positioned to mitigate risks or absorb the costs of injuries.”
Speaking of scope, Corrigan remarked that the ruling applies only to professionally-trained home health care workers employed by an agency, and that not just anyone who provides care for patients with Alzheimer’s disease assumes the risk of injury. She called the ruling “consistent with a strong public policy against confining the disabled in institutions” Nonetheless, Justices Lawrence D. Rubin and Kathryn Werdegar begged to differ. “The institutionalized Alzheimer’s patient…has little or no liability, but neither does the patient have any control or authority over the workplace. The patient’s lack of authority squares with the patient’s absence of liability,” wrote Rubin. “A private home is different.”
“Because family members retain control,” he explained, “family members should likewise retain liability. But the court’s decision today weakens the link between control and accountability by relieving the family from needing to be concerned about dangers to the in-home caregiver so long as those dangers arise from the family member’s Alzheimer’s disease.” The dissenting judges commented that the decision “weakens the link between control and accountability by relieving the family from needing to be concerned about dangers to the in-home caregiver so long as those dangers arise from the family member's Alzheimer's disease.”