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24 hour private assisted care service. What is the degree of liability for accidents?

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marcx013

Junior Member
What is the name of your state (only U.S. law)? CA

Hello all,
Background: My good friend owns a business in which she hires care takers to provide private assistance to the elderly who wish to remain in their homes. One of the services that my friend offers is 24 hour care for a client who really does need assisted living but doesn't want to be put in a home. To provide this service, 2-3 caretakers are assigned with rotating shifts to allow adequate coverage. Clients who can afford this service typically are affluent enough to have a spare bedroom for the caretaker to sleep in.
Incident: About a week ago, a caretaker was on duty when she needed to use the restroom. She explained to the 90 year old client that she would be back and not to get up while she is away. While the caretaker was using the restroom, the client got up and somehow fell. Her injury was bad enough to require her to go to the hospital, where she still remains.
The client's children were extremely upset (rightfully so) at their mother's accident. They have threatened my friend with a law suit for gross negligence and possibly wrongful death (if she passes).
Question: The question is, is it reasonable to have a lapse in care for a bathroom break when your service states "24 hour care". Would a case for gross negligence be possible? What wording in the contract would there have to be in order for a judge to dismiss the case?
What resources are there to do more independant research, perhaps cases similar to this one?

Thank you all in advance for any insight you can provide.
 


Zigner

Senior Member, Non-Attorney
I'm sure your friend's business has insurance - she can report it to them and let them handle it.


What is the name of your state (only U.S. law)? CA

Hello all,
Background: My good friend owns a business in which she hires care takers to provide private assistance to the elderly who wish to remain in their homes. One of the services that my friend offers is 24 hour care for a client who really does need assisted living but doesn't want to be put in a home. To provide this service, 2-3 caretakers are assigned with rotating shifts to allow adequate coverage. Clients who can afford this service typically are affluent enough to have a spare bedroom for the caretaker to sleep in.
Incident: About a week ago, a caretaker was on duty when she needed to use the restroom. She explained to the 90 year old client that she would be back and not to get up while she is away. While the caretaker was using the restroom, the client got up and somehow fell. Her injury was bad enough to require her to go to the hospital, where she still remains.
The client's children were extremely upset (rightfully so) at their mother's accident. They have threatened my friend with a law suit for gross negligence and possibly wrongful death (if she passes).
Question: The question is, is it reasonable to have a lapse in care for a bathroom break when your service states "24 hour care". Would a case for gross negligence be possible? What wording in the contract would there have to be in order for a judge to dismiss the case?
What resources are there to do more independant research, perhaps cases similar to this one?

Thank you all in advance for any insight you can provide.
 

ecmst12

Senior Member
Are these "caretakers" certified nursing assistents or certified home health aides? Or are they laypeople?
 

marcx013

Junior Member
Are these "caretakers" certified nursing assistents or certified home health aides? Or are they laypeople?
I am not sure as to whether the aids have a specific certification level. I would assume that they are not certified by any state agency. I believe the employees have more informal training.
 

ecmst12

Senior Member
Then yep, your friend's business could be in serious trouble and I hope they were properly insured.
 

barry1817

Senior Member
medical

What is the name of your state (only U.S. law)? CA

Hello all,
Background: My good friend owns a business in which she hires care takers to provide private assistance to the elderly who wish to remain in their homes. One of the services that my friend offers is 24 hour care for a client who really does need assisted living but doesn't want to be put in a home. To provide this service, 2-3 caretakers are assigned with rotating shifts to allow adequate coverage. Clients who can afford this service typically are affluent enough to have a spare bedroom for the caretaker to sleep in.
Incident: About a week ago, a caretaker was on duty when she needed to use the restroom. She explained to the 90 year old client that she would be back and not to get up while she is away. While the caretaker was using the restroom, the client got up and somehow fell. Her injury was bad enough to require her to go to the hospital, where she still remains.
The client's children were extremely upset (rightfully so) at their mother's accident. They have threatened my friend with a law suit for gross negligence and possibly wrongful death (if she passes).
Question: The question is, is it reasonable to have a lapse in care for a bathroom break when your service states "24 hour care". Would a case for gross negligence be possible? What wording in the contract would there have to be in order for a judge to dismiss the case?
What resources are there to do more independant research, perhaps cases similar to this one?

Thank you all in advance for any insight you can provide.

Just amazing when one thinks about this. A person takes a bath room break and an accident happens. Wonder where one would find negligence in a person going to the bath room.

Now the question that might get asked is what sort of restraining rails were on the person's bed to help prevent this situation, and is the need for railings on a bed a standard of care that is usual and standard for such patients.
 

lya

Senior Member
This is not a situation where skilled or professional care is rendered, offered, or allowed. This is no more than an adult babysitter. Common sense allows for bathroom breaks, which means the adult will be alone for a period of time.

There appears to be no doubt that intervals of the adult's being alone will occur; ie.: meal preparation, laundry needs, bathroom breaks, answering the door, etc. The family knowingly and willingly employed one person to provide care with no person available to sub when the caregiver had to be away from the patient.

If the family or the adult needing a caregiver needs or requires non-interrupted 24 hour a day care, it would either require 6 caregivers for 2 per each 8 hour shift or four caregivers for 2 per 12 hour shifts.

Siderails or other restraining measures should not be allowed in such a circumstance; but, if the family provided such, the caregiver could have used the rails if needed. Railings and other restraints are dangerous.

I believe there is no basis for a claim of professional negligence as no professional services are offered or provided. There is also most likely absolutely no viable claim against the caregiver or the employing company.

My advice to the employing company is to have an attorney prepare service contracts that specifically state there will be times when the adult is alone.
 

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