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Thread: Am I able to sue the IHSS program and the caregiver for self neglect?

  1. #1
    Windeecity is offline Junior Member
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    Am I able to sue the IHSS program and the caregiver for self neglect?

    Sorry for the long post in advance -

    I have reported my 93 year old Mothers IHSS Caregiver (xxxx for the sake of privacy) to the Public Authority Dept. in my county for not reporting a life threatening condition to my Mothers caseworker or to anyone in the family.

    I filed the complaint in writing, sent it via email per the Public Authority's request. 5 weeks have passed and I have not heard anything back from the county Public Authority so I emailed them a week ago asking for an update. Again,I have not heard back from them. I am wondering if they think I will just go away.

    I am seeking an attorney to sue the caregiver for self neglect and the IHSS program. This program is broken and no one actually "governs" these caregivers. My intention was to have this caregiver removed from the program but one of the Public Authority workers said they would retrain her. I told them no, that xxxx has no common sense and made my Mother suffer terribly.

    Here is the complaint I am submitted to the Public Authority and APS against xxxx and I am requesting a full investigation and to have xxxx removed from the IHSS program:

    xxxx is a mandated reporter and did not report this life threatening ongoing condition to the case worker, APS or any other authority.

    xxxx neglected my Mother’s health and caused her unnecessary physical and mental suffering for months with a life threatening medical condition.

    xxxx did not report this life threatening condition to myself, as I visited my Mother 1-2 times a week.

    xxxx did not reveal that my Mother had been to a Doctor on Dec. 28 and needed follow up appointments to diagnosis this condition.


    Listed in chronological order are the events that transpired leading to the knowledge of my Mothers life threatening medical condition, cancer of the left breast.

    Dec. 29, 2012
    My sister arrived from Chicago to visit our Mother for a few weeks.
    Dec. 30, 2012
    My sister called me in alarm Sunday morning stating that she had found a bra in the laundry basket stained heavily with blood and perhaps pus. It had been rinsed out but not washed. My sister asked me if I knew anything about that and I said no. My sister then asked the caretaker xxxx who rinsed the bra out initially what was going on and xxxx stated “Your Momma has a rash and I took her to the Doctor on Friday, Dec. 28th”. Nothing more was said by xxxx or any other information passed on to my sister or I.

    Later that day I picked up my sister to drive her to the grocery store and when we returned to My Mother’s place a few hours later, the entire apartment was filled with a strong putrid odor. I looked everywhere for the odor and discovered it was the bra that lay wet in the laundry basket with the blood and pus. My sister and I disposed of it outside and then decided to ask my Mother about what was going on. She said she had a rash on her breast. I asked my Mother to lift her blouse and bra up and was horrified to see her left lower breast. The “rash” as xxxx described was a huge ulcerated lesion that covered the entire bottom of my Mother’s breast. It was an open hole that was bleeding and oozing, and I literally thought I seen raw muscle tissue. I did everything I could not to panic and asked my Mother if she was in pain, and she answered no. I decided against taking a picture because again, I did not want to alarm my Mother.

    Dec. 31, 2012
    My sister noticed that xxxx was giving an antibiotic to my Mother Monday morning and questioned her again about the “rash”. xxxx has somewhat of a language barrier and she could not explain to my sister and my sister could not understand what she was saying.

    As my sister and I whaled through setting up the medical appointments we made an appointment to speak to my Mothers caseworker on Tuesday, January 8th. We needed an explanation as to why and how this could have happened. I knew after talking to the caseworker that the best result was to no longer have the caregiver handle my Mothers case and have this further investigated as to why she ignored this lesion on my Mother for a year ( as stated by several physicians that this lesion had been there a very long time to grow this size).

    After receiving the biopsy results (cancer) for my Mother on January 7th, my Mother had her left breast removed on January 17th.
    Last edited by Windeecity; 03-12-2013 at 01:31 AM.
  2. #2
    CdwJava is online now Senior Member
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    What state are you in? This could make a difference as to liability and remedies (if any).

    Do you have a doctor willing to testify that had there been some earlier notice made that the breast would have been saved? In the IHSS contract, were there any stipulations, promises or agreements that were not adhered to? Is she required to contact you or your sister, or the doctor, or her supervisors if she observes any unusual conditions?

    Note that it is doubtful that any prior notice would have saved the breast or prevented the incubation of the cancer as it has likely been metastasizing for many months or years.

    Understand that IHSS workers are generally untrained, may lack basic skills, and often receive barely above minimum wage. They are not there to provide medical assistance only to perform certain, specified, basic tasks. If your mother had some serious and life threatening medical condition, why was she not in an assisted living facility or receiving home visits from a trained nurse? While this IHSS worker probably should have contacted someone about the lesion under your mother's breast, it may not have been a job requirement, and it might be possible that she did not observe it or even know what she observed if she had. From what I have seen, these contracts with IHSS should specify the level and type of need so you may want to read through what services were promised before you start talking about lawsuits.

    Also, run the scenario past an attorney to determine if there is any claim to be made, and if you or your sister can even make the claim on behalf of your mother. Unless she is incompetent, any claim will have to come from her, so your participation may be severely limited.

    This would not be a do-it-yourself endeavor, and sending a letter that paints out certain facts might not benefit you in the long run. The "facts" as presented could paint you into a corner if any of them are in error. So, before you send off any letter you might want to have an attorney take a peek at it.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  3. #3
    Windeecity is offline Junior Member
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    Quote Originally Posted by CdwJava View Post
    What state are you in? This could make a difference as to liability and remedies (if any).
    I am in California

    Do you have a doctor willing to testify that had there been some earlier notice made that the breast would have been saved? In the IHSS contract, were there any stipulations, promises or agreements that were not adhered to? Is she required to contact you or your sister, or the doctor, or her supervisors if she observes any unusual conditions?

    After speaking to the case worker, yes the caregiver is a mandated reporter and was suppose to follow rules to report situations medical or behavioral to the caseworker. For privacy matters, the caseworker then in turn calls the recipients 9my Mother) emergency contact list numbers

    Note that it is doubtful that any prior notice would have saved the breast or prevented the incubation of the cancer as it has likely been metastasizing for many months or years.

    Of course I understand that, but the caretaker who having bathed her 3 times a week seen this ongoing condition getting worse as the months progressed. She did not report this to anyone.

    Understand that IHSS workers are generally untrained, may lack basic skills, and often receive barely above minimum wage. They are not there to provide medical assistance only to perform certain, specified, basic tasks. If your mother had some serious and life threatening medical condition, why was she not in an assisted living facility or receiving home visits from a trained nurse?

    This is where the problem lies...no one knew she had a life threatening condition, until my sister and I discovered the pus and blood in her bra. I never bathed my Mother when I visited so I would not know that her breast was nearly rotted out underneath.

    While this IHSS worker probably should have contacted someone about the lesion under your mother's breast, it may not have been a job requirement, ( yes, it is) and it might be possible that she did not observe it or even know what she observed if she had. ( My mothers lesion was huge, in fact it was a hole about the size of a half dollar)

    From what I have seen, these contracts with IHSS should specify the level and type of need so you may want to read through what services were promised before you start talking about lawsuits.
    I have the service contract and know that the caretaker did not report a medical condition, it is called self-neglect.

    Also, run the scenario past an attorney to determine if there is any claim to be made, and if you or your sister can even make the claim on behalf of your mother. Unless she is incompetent, any claim will have to come from her, so your participation may be severely limited.
    She is very aware of the surgery and competent to a point, but all this has traumatized her and she is fearful and confused more than ever I have seen.

    This would not be a do-it-yourself endeavor, and sending a letter that paints out certain facts might not benefit you in the long run. The "facts" as presented could paint you into a corner if any of them are in error. So, before you send off any letter you might want to have an attorney take a peek at it.
    I haven't contacted anyone in a legal position yet, but the County Public Authority Director asked me to write the chronological events, so I did. Now they won't return my call as to the progress of the investigation and removal of the caregiver from the IHSS program.

    One more thing I would like to add is that since this happened I went to sign up to be one of these caregivers to see what the program really entails. 2 hours of some power point slides on how to fill out your time slip, avoid fraud, etc. and 5 minutes open questions. I asked directly about the self neglect issue and yes, all medical conditions have to be reported to the caseworker if the elder recipient cannot make sound judgement decisions about their health. It is why Adult Protected Services are there, and I am filing with them also to have the caregiver investigated
    .
  4. #4
    CdwJava is online now Senior Member
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    Quote Originally Posted by Windeecity View Post
    After speaking to the case worker, yes the caregiver is a mandated reporter and was suppose to follow rules to report situations medical or behavioral to the caseworker. For privacy matters, the caseworker then in turn calls the recipients 9my Mother) emergency contact list numbers
    A "mandated reporter" means something entirely different than reporting possible ailments. That has to do with reporting intentional abuse or neglect of a dependent adult or minor. Now, if the contract involves evaluation of medical care, I would think they would have assigned a more highly skilled worker.

    Even if she was supposed to report any observations of bruises, lumps, bumps or abrasions to the caseworker, that does not mean that her failure to do so resulted in any serious harm. Merely failing to adhere to a policy does not make a viable claim for damages.

    I have the service contract and know that the caretaker did not report a medical condition, it is called self-neglect.
    I have not heard that term, "Self neglect" but I'll take your word for it. Again, see my comment above.

    This is where the problem lies...no one knew she had a life threatening condition, until my sister and I discovered the pus and blood in her bra. I never bathed my Mother when I visited so I would not know that her breast was nearly rotted out underneath.
    And, had she continued to tend to the breast properly no one might ever have found out about the condition. As backwards as it might seem, the lack of care may have resulted in the discovery of the cancer and thus saved her life. Again, we fall back on the IHSS worker not being a trained medical professional. Such care is expensive and involves a different program of care.

    She is very aware of the surgery and competent to a point, but all this has traumatized her and she is fearful and confused more than ever I have seen.
    And, had it been discovered and treated by surgery a week, a month, or two months earlier, can you definitively say that she would not be feeling the same way?

    These are questions that an attorney will ask you - or your mother. A nexus between the failure to report any possible medical issues (coupled with a duty to report) which objectively resulted in damages or increased harm will have to be established, and this may not be as easy as you might think. Simply failing to adhere to the rules is not going to do the job.

    I haven't contacted anyone in a legal position yet, but the County Public Authority Director asked me to write the chronological events, so I did. Now they won't return my call as to the progress of the investigation and removal of the caregiver from the IHSS program.
    Given my experience with IHSS, you may have two choices: fire the IHSS caretaker and provide your own caregiver, or continue on and more closely monitor the situation until a replacement is found. It can be difficult to find IHSS workers that are competent, and fewer are willing to do the hard work that might be necessary with a very senior woman. Add a possible lawsuit to the mix, and it might be nearly impossible to find anyone to fill in. An IHSS placement is voluntary and they are not ordered to go. It might mean the difference between working or not working, but they don't simply say "go there, or your fired," as these are already low paid, low-skill jobs and the parties involved can often find jobs at almost the same pay elsewhere. My wife has been trying to replace her two IHSS positions since she started teaching full time again in August, and they have just NOW (March) found a replacement for one of the positions. The second position was resolved when the elderly woman (100 years old) was placed into a home by the family this week because she became too difficult for the weekday IHSS workers to properly care for - my wife only worked a few hours on the weekend and had the skills to do it correctly. So, if that experience is any indicator, you might have a very long wait for a replacement.

    One more thing I would like to add is that since this happened I went to sign up to be one of these caregivers to see what the program really entails. 2 hours of some power point slides on how to fill out your time slip, avoid fraud, etc. and 5 minutes open questions. I asked directly about the self neglect issue and yes, all medical conditions have to be reported to the caseworker if the elder recipient cannot make sound judgement decisions about their health. It is why Adult Protected Services are there, and I am filing with them also to have the caregiver investigated.
    About all APS will generally do will be to remove the IHSS worker. It is the rare county that APS actually brings criminal charges against anyone, and then it has to be shown that the neglect was an intentional act and not simply incompetence - this is why most medical matters are civil issues and not criminal.

    As for reporting the conditions to the caseworker, that must vary by county because in my county the caseworker merely manages the IHSS placement. Any medical notification must go to the designated family member or physician of record. The most that the caseworker will do here is put the IHSS worker in touch with the family representative.

    And, once again, if you intend to make a claim for damages and/or pain and suffering, consult an attorney and be prepared to put up a few thousand dollars just to get started. You might simply have to settle for making whatever changes you might need to make so that your mom is comfortable and safe ... and, sometimes this might not be cheap nor easy. But, IHSS is low-skilled, untrained work designed primarily to provide the most basic of services - clean up, change a diaper, empty a bedpan, prepare meds (maybe), set out food and water, etc. If she is in need of more attentive care, you should really consider other care or placement alternatives.

    I am not saying that there is no case for neglect against the county IHSS program or the worker, but simply pointing out to you that it is not as easy as finding a possible violation of the rules and some ineffective care or communication. In my experience in these matters the most often result of such neglect is a change of placement rather than a civil suit, and only in the most egregious and intentional cases will criminal charges be filed.

    Good luck to all of you.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  5. #5
    Windeecity is offline Junior Member
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    On Jan 23rd I discharged the caregiver, found another 3 days later that spoke English and was already in the program, I took the course myself, went and got a live scan, a background check and signed all county documents. I now work 2 days a week for my Mother and I am able to oversee the new caregiver. As discussed with her caseworker some of the caregivers go on auto-pilot, and the caseworker is the one that told me no one governs this program. She also admitted that sometimes when there is an issue that the caregiver has been ignoring that they will scramble to try to do something at the last minute. This actually was the exact case with my sister coming to visit for a few weeks. When all this time my Mothers breast got worse and began to rot this caregiver did nothing to call and make an appointment until the day before my sister arrived.

    I think you might be off track with some of your responses but do appreciate your input.
    Yes, there is such a thing as self neglect and yes the IHSS referral program makes you sign all kinds of documents stating you understand all these policies. I may have left out some details about the moronic, ignorant caregiver to really paint the picture, but was sticking to this one issue.

    I originally had no intentions or even thought about suing, I only asked that the caregiver be removed entirely from the IHSS system. I am still reporting her to APS for not following policy.

    Today I may even call the Governors office to complain about the IHSSprogram
    Call me Erin Breckenridge... I'd find great pleasure exposing this program and the one speed county workers. (Smile)
  6. #6
    ecmst12 is offline Senior Member
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    You were informed about the dr's appointment 2 days after it happened. You don't know how long the wound had been present before that - and quite likely, not long at all. In elderly people, skin breakdown can happen quickly with little warning. I find it very unlikely that she had a bleeding wound for over a year. You didn't follow up with the doctor that she saw immediately upon finding out about the appointment, which you could have, but honestly, the few days that it took for you to realize it was serious and get further medical attention did not make a difference in her condition. Now, the cancer could have been there for a year before any outward symptoms presented themselves, and as CDW said, thank god the wound occurred or no one might have ever thought a biopsy was needed.

    However, a personal caregiver is NOT a healthcare provider and does NOT have a license (in many states) or any duty of care towards their clients. They are mandated reporters if they witness their clients being abused by someone else, but they are NOT a substitute for regular doctor visits or even periodic home nursing visits if the patient has many health problems. It is not their job to assess anyone's physical condition or diagnose/treat any medical problems and in fact, legally they are NOT permitted to make those judgements.

    I understand your complaint to the aide's employer and perhaps they will take action (or perhaps not, they are not required to inform you), but I don't think this was anything against the law so the state agency may not take any action at all. Even if they do, you need to realize the kind of caseload carried by these agencies and expect that it will be a few months at least before they are able to complete their investigation.
  7. #7
    OHRoadwarrior is offline Senior Member
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    It appears the largest case of neglect was by you. You were overseeing moms care and not only failed to check up on her medical status, but left her in a situation where she was not receiving proper medical attention. I can only assume it was to maximize your and your sisters inheritance. I am in personal contact with my mother weekly. My sisters are in constant phone contact. We coordinate her complaints and I coordinate her care.
  8. #8
    Windeecity is offline Junior Member
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    Quote Originally Posted by OHRoadwarrior View Post
    It appears the largest case of neglect was by you. You were overseeing moms care and not only failed to check up on her medical status, but left her in a situation where she was not receiving proper medical attention. I can only assume it was to maximize your and your sisters inheritance. I am in personal contact with my mother weekly. My sisters are in constant phone contact. We coordinate her complaints and I coordinate her care.
    I am think you failed to read my post, I was not overseeing my Mothers care or her caregiver in the past. I went to visit her as a daughter and did not bathe her, dress her, change her pull ups...etc.

    Before you start saying I neglected her is far from true. How was I suppose to check on her medical status if no one told me there was one.
    When asking her primary doctor her history he had no idea she had this lesion until Dec. 28th. He was shocked also, said he never seen anything like this before.
    The caregiver didn't give one damn about her health or was too damn ignorant to report it to the caseworker and there is no one to blame but her.

    I DO NOW oversee all of her needs and hired a caregiver with a brain and communication skills. As far as an heritance, you do understand that a 93 year old who is a medi/medi and receives 900 SS a month to live on does not have an heritance - You sound like a troll with statements like that.
  9. #9
    ecmst12 is offline Senior Member
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    OHR is a bit trollish, yeah. And his post was unnecessarily harsh. But you SHOULD have been overseeing her care from the beginning. Why didn't you help to bathe her, dress her, change her? If you had really been doing your job as a family member, you would have been more hands-on with her care, and you wouldn't be having this problem. You were relying on a low-paid, unskilled, personal caregiver to do YOUR job as the family member.
    Blue Meanie and OHRoadwarrior like this.
  10. #10
    Windeecity is offline Junior Member
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    Quote Originally Posted by ecmst12 View Post
    OHR is a bit trollish, yeah. And his post was unnecessarily harsh. But you SHOULD have been overseeing her care from the beginning. Why didn't you help to bathe her, dress her, change her? If you had really been doing your job as a family member, you would have been more hands-on with her care, and you wouldn't be having this problem. You were relying on a low-paid, unskilled, personal caregiver to do YOUR job as the family member.
    One big reason was because I did not live near her at the time or in CA when she started with IHSS 5 years ago. When I moved here 2 years ago I was able to visit my Mother whenever I wanted and everything appeared to be just fine, she was happy and comfortable. Not well fed IMO but I took her meals several times a week. I was not there as a primary caregiver and she enjoyed being with me as a daughter, why fix it if it ain't broken? I worked part-time but now am unemployed and have the time, lots of time. I'm turning 60 this year and can't physically lift her or help with bathing. I have my own health problems to look after. The few times she has fallen I've had to call the fire dept. for help to lift her up.

    But, this is going off topic as the subject isn't about me, it's about the previous caregiver and the lack of common sense, the broken IHSS program and the lack of overseeing these caregivers.

    Thanks for all your advice, I will update you on my results battling with the agencies to have the caregiver removed. I thought about suing just to get their attention is all. But, if I keep on them they may give me the results I want.
  11. #11
    Blue Meanie is offline Senior Member
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    Quote Originally Posted by Windeecity View Post
    One big reason was because I did not live near her at the time or in CA when she started with IHSS 5 years ago. When I moved here 2 years ago I was able to visit my Mother whenever I wanted and everything appeared to be just fine, she was happy and comfortable. Not well fed IMO but I took her meals several times a week. I was not there as a primary caregiver and she enjoyed being with me as a daughter, why fix it if it ain't broken? I worked part-time but now am unemployed and have the time, lots of time. I'm turning 60 this year and can't physically lift her or help with bathing. I have my own health problems to look after. The few times she has fallen I've had to call the fire dept. for help to lift her up.

    But, this is going off topic as the subject isn't about me, it's about the previous caregiver and the lack of common sense, the broken IHSS program and the lack of overseeing these caregivers.

    Thanks for all your advice, I will update you on my results battling with the agencies to have the caregiver removed. I thought about suing just to get their attention is all. But, if I keep on them they may give me the results I want.
    Wow. Just WOW.
  12. #12
    CdwJava is online now Senior Member
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    There are a great many issues with IHSS - not the least of which is a lack of funding and the fact that it often employs those incapable of obtaining other work. I can't begin to tell you the number of allegations we (the police) receive on careworkers alleged to be stealing from their clients. There are few disqualifying offenses for the program, so we often find people convicted of drugs and other offenses working as IHSS workers. Are they ripping off their clients? Sometimes, sure. Much of the time, however, the client is a little off and the IHSS worker is but one of many people accused by the client so the allegations can be hard to prove. But, what it does is compel many workers to change jobs either to another client, or leave IHSS work altogether. It's kind of hard to convince someone to keep working after they have been subject to police scrutiny.

    The pay, the hours, the often bad working conditions all play together to make IHSS not the most reliable source of assistance for a loved one. It should be seen as a hand for some routine chores but is not a substitute for skilled care. Unfortunately, I have found that many people see it as such.
    Windeecity likes this.
    A Nor Cal Cop Sergeant

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    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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