What Happens When Her Caregiver Sues Mom?

October 25, 2017

Of all the worries you might have about your aging parents, a caregiver lawsuit might be low on the list. However, more families should be concerned about a potential caregiver lawsuit. I’ll never forget getting this call from one of my family members. She said “Mom’s caregiver fell while trying to help her and she’s badly injured. Should we be worried?” Too often, when something like this happens it’s the first time anyone’s thought of the possibility.

Different Scenarios When Facing a Caregiver Lawsuit

Scenario 1: Caregivers Hired Through an Agency

If you hired the caregiver through a home care agency the caregiver will generally be covered by worker’s compensation and liability insurance. (Check the type of agency and state requirements.) In most cases, a claim will be processed through the company for appropriate compensation. There is a chance the caregiver would sue for damages above this. This is called a third party claim since you are not the employer. However, this would require showing circumstances like misrepresentation or negligence. You can read more about one such California case.

As a result of the home care agency taking certain precautions, the client was protected. This is why it is essential that any home care agency you work with provide training, supervision, and good documentation. A written care plan showing the client’s needs and concerns will prove useful in any claim or lawsuit.

Scenario 2: A Caregiver Lawsuit When You’re the Employer

If you hired the caregiver “under the table” you probably don’t have applicable insurance coverage. Therefore, your risk is far greater. Sometimes families believe their homeowner’s insurance will cover caregiver injuries or claims. However, this is rarely the case. Before you make this assumption, check with your provider.

You could possibly buy an insurance policy with coverage for household employees. Sometimes this is known as an “umbrella policy”. Yet, you may not be saving any money if you go this route. And, you will not have the benefit of a company to provide training, supervision and troubleshooting. These are the very things that can stave off a caregiver lawsuit or protect you if facing one.

Employment Issues

You may also run into problems with tax or employment issues. Do you understand the rules about employing someone and paying taxes? What are your responsibilities if the caregiver gets sick or needs leave? How will you handle complaints? What can you do if something goes missing? Or, what if you feel your loved one is being overly influenced or not treated well?

The Department of Labor sets specific rules on pay, overtime and employment regulations. The government has been suing employers for unpaid taxes and wage/hour compliance. They continue to pursue “accidental employers” who don’t comply with rules. You can review the Department of Labor Home Care Consumer Guide for all the specifics. Do not take on an employee without understanding this fully.

The best way to avoid these issues is prevention. Set up things to protect your family. However, if you do find yourself facing a caregiver lawsuit, quickly reach out to a qualified attorney. If you plan to hire a caregiver privately, you’d be well advised to consult with a lawyer first. You may want your attorney to draw up the contract.

Prevention and Protection: Avoiding the Caregiver Lawsuit and Minimizing Damage

As a result of all these considerations, we advise you to consider a home care agency. Think through all the concerns raised above. Compare costs fairly, especially potential hidden costs. Get professional advice before you dive into becoming the employer. If you hire on your own, think about how YOU will handle the issues below.

If you hire an agency, find out about their:

Hiring process: What are their requirements? Do they go beyond basic qualifications to make sure someone is a good fit? What background checks do they do?
Training: What does their orientation and training program entail? Do they provide continuing education? Will they pay caregivers for their time when training? Does the caregiver have specific training in what your loved one needs? This could include Alzheimer’s Disease/dementia care, proper lifting techniques, medication assistance, What about preparing nutritious meals within dietary restrictions or helping with bathing and personal care?
Worker’s Compensation & Liability Insurance: Not all states require employers to carry worker’s comp. And, even if the state doesn’t require it, some agencies may provide it. Don’t assume. Get proof of their coverage.
Care plan: How does the caregiver know what to do with your loved one? Do they have a specific, written plan? Does the plan account for personal needs and preferences? How is the plan communicated? Will the caregiver document what happens? Read more: The Secret to Taking Care of Mom: A Good Care Plan.
Supervision: Does a supervisor attend the first meeting? Who follows up? How does the agency find out if you and your loved one are satisfied?
Feedback process: Run some scenarios by them. Or, ask them to tell you about a caregiver problem and how they dealt with it. Do they introduce you to supervisors and tell you who to contact? Are they proactive in following up with you?
Treatment of employees: How do they evaluate employees? Do they reward good behavior? Is there a positive environment? What is the company’s philosophy about employees?