Duty of Care Neglect Can Result in Personal Injury
Duty of care can be a confusing topic for family caregivers and persons injured by a home care agency worker. While personal injury, elder law, estate planning, or other litigators are well-versed in the factors necessary to show negligence, an experienced home care expert witness can provide an opinion to support a negligence claim.
In this article, home care expert witness,
Pamela D Wilson, simplifies the meaning of duty of care. She explains how duty of care is supported by standards of care, and provides examples of duty of care issues that can result in harm to loved ones by home care agencies, including home healthcare, non-medical home care, palliative, and hospice care organizations.
Types of Home Care Agencies
All home care agencies, whether they are home health agencies or non-medical home care agencies, fall under the category of home care. Two other organizations provide care in the home; however, they are not typically considered home care services.
Palliative care agencies provide in-home services to prioritize comfort and quality of life. Hospice care agencies provide end-of-life care services in the home for persons not expected to live longer than six months. All home care agencies owe a duty of care to their clients and patients.
While palliative care and hospice agencies are not considered “restorative” in nature—meaning their focus is not on health improvement—the duty of care still applies to the responsibility to avoid potential harm to an individual or patient.
As a home care expert witness
and in her previous roles as a professional fiduciary, care manager, and owner of a non-medical home care agency, Wilson witnessed significant differences in the operations, standards, and duty of care of the home care agencies that she hired and supervised for her clients.
Medicare and Medicaid Licensing
Home health care, palliative care, and hospice care agencies typically hold licenses for both Medicare and Medicaid.
This means that Medicare and Medicaid cover the costs of their services. In addition to state statutes and guidelines, these organizations also follow federal regulations.
Non-medical home care agencies that provide personal care, homemaker, and companion services may hold a Medicare and Medicaid license or operate on a private pay basis.
When family caregivers hire or work with an agency, it is important to know how the agency is funded or compensated.
Additionally, communication between the hiring party and the home care agency is crucial to ensure that care needs are met and services are provided appropriately. While family members may not realize it, they have a role in making sure that employees sent from home care agencies provide the ordered or requested services.
Why Home Care Agencies are Beneficial for the Elderly
When working with a home care agency, it is essential to understand their duty of care in relation to preventing potential harm to a loved one. The employees of these organizations have a duty to follow federal and state regulations.
First, a little background about why home care is beneficial.
- Many older adults prefer to continue living in their homes rather than moving to a care community or a nursing home.
- Some need help or support that can’t always be provided by adult children or family members who work or live at a distance.
- While all older adults who need assistance prefer to be completely cared for by family members, this is not always practical for various reasons.
As a result, many older adults and their family caregivers hire home care agencies to provide daily support. Managing a home care agency can be intimidating at first, but with knowledge and a plan, utilizing a home care agency to support a spouse, aging parent, or other family member in remaining at home can be beneficial.
Home Care Agency Duty of Care
While family members believe they have a duty to care for elderly parents or other family members, not all understand the implications of their actions. Many fail to understand how their actions or good intentions can lead to interactions with adult protective services (APS), healthcare providers, or the court system.
In simple terms, duty of care is an obligation to protect others from foreseeable harm. For most people duty of care means acting responsibly and reasonably.
However, the duty of care holds more significance for home health care, non-medical in-home care, palliative care, and hospice care agencies because these companies and their employees operate under both federal and state statutes and regulations.
Separately, a family caregiver who holds a fiduciary role, such as an agent under power of attorney, guardian, or conservator, is also held to a higher standard in terms of the duty of care. This is because this individual agrees to act in a fiduciary capacity by providing, managing, or overseeing care.
Fiduciary Responsibility: A Unique Skill for a Home Care Expert Witness
Fiduciary responsibility is
the foundation of Wilson’s expertise in duty of care and standards of care for home health, non-medical home care agencies, day care programs, and senior living communities. From 2007 to 2018, she served in various roles, including court-appointed guardian and conservator, agent under medical and financial power of attorney, and trustee for clients. In these roles she had an ethical and legal obligation to her clients.
In addition to fiduciary experience, Wilson served as a care manager responsible for creating and managing care plans for clients living at home and in community care settings.
Between 2009 and 2018, Wilson owned and operated two companies that specialized in care for the elderly and individuals with disabilities.
When Does Duty of Care Apply?
Duty of care arises when there is an agreement to provide care. This agreement is typically contractual. A company or individual offers a service that the other accepts. A plan of care, often referred to as a care plan, is created that describes the services or tasks that will be provided. Furthermore, consideration or payment is exchanged between the two parties.
Companies, employees, and individuals who work in health and social care services have a duty of care to their patients and clients. Duty of care and standards of care are related.
Standards of care define how the duty of care is implemented. So while duty of care is the legal obligation to avoid causing harm to others, the standards of care describe the practices, policies, and procedures required by companies and individuals to avoid causing harm to others.
Home care. non-medical in-home care, palliative care, and hospice care agencies operate under standards of care that include personal and professional competency, knowledge of health and safety, individual rights and responsibilities, confidentiality, personal boundaries and other key components.
How the Elderly Can be Harmed by Home Health and Home Care Agencies
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How Duty of Care Relates to Standards of Care
Let’s look at examples that illustrate how duty of care relates to standards of care.
Employees who provide home care services are expected to be competent. What does this mean? Competency means that if an agency offers home care services for the elderly, employees must be trained and possess practical work experience.
If an agency offers home care services to older persons with Alzheimer’s or dementia, employees must be trained in dementia or Alzheimer’s care and have one-to-one experience caring for persons with dementia.
In my personal experience, Alzheimer’s and dementia care training is often lacking. Some employees who have a family member with memory loss may overestimate their own skills in this area, potentially placing a patient or client at risk.
Competency, training, and experience are expectations of home care agencies. When I owned and operated my non-medical in-home care agency and a care management-fiduciary agency, I experienced firsthand the challenges of hiring, training, and retaining employees for these challenging positions.
Home Care Agency Challenges
1 Operating a home care business can be a challenging endeavor.
- These businesses offer transitory positions for individuals attending nursing school or those who need income on their way to finding a higher-paying job.
- Some individuals imagine that working for a home care agency will be easy until they learn that caring for people and dealing with their families can be complicated and emotionally draining if one does not have good boundaries.
Caring for the elderly is a calling. It’s NOT for everyone.
2 Service offerings and training levels differ between home healthcare and non-medical home care agencies
- Employees of non-medical home care agencies may be required to attend online training, but may not have extensive hands-on, supervised, or practical experience. These individuals are not considered skilled, as they do not offer healthcare-focused services.
- Non-medical home care services typically relate to support with activities and instrumental activities of daily living
- Employees of home health, palliative care, and hospice care agencies have specialized knowledge, education, and training. These agencies provide services through Medicare and Medicaid, which have more detailed standards of care.
- Home healthcare agency employees include a director and staff who may include registered nurses, licensed practical nurses, physical therapists, occupational therapists, speech therapists, and certified nursing assistants
For these differences in service offerings, families working with agencies should understand the background, skills, qualifications, and limitations of the services of the companies they agree to hire.
Duty of Care Issues
Even with the most well-trained individual, problems with duty of care can happen. Older adults often require care assistance due to physical, medical, mental health, or cognitive conditions. Maybe they’ve suffered a heart attack, hip fracture, stroke, have diabetes, arthritis, or mobility difficulties.
A detailed care plan or plan of care is created to ensure that employees perform their roles in accordance with the duty of care and standards of care. If an employee doesn’t meet competency, training, or experience requirements, then they should not be sent into the home to provide services.
Sometimes, employees without proper training, skills, or qualifications are sent into client homes because agencies rush to fill a schedule or a vacancy.
I have seen agencies send employees out before their background check was completed, only to discover days later that the employee had a criminal record or other concerns about their employment skills, qualifications, or background.
I have seen agencies that fail to have employees complete required initial training or that do not provide a sufficient amount of ongoing training or supervision due to time constraints, a lack of systems or processes, or cost.
Duty of Care Negligence Examples
Taking shortcuts related to standards of care can lead to duty of care issues, harm or injury, and preventable litigation. Examples of duty of care negligence that can result in harm or injury include:
- A fall and serious physical injury in the bathroom occurred because a caregiver was not trained to bathe or shower a client safely.
- A person with dementia wandered outside a store and was injured because a caregiver was distracted by accepting a personal call on a cellphone during a shift and lost track of the client’s location.
- A client was injured by an automobile or motorized vehicle during an outing with a caregiver who was responsible for monitoring the client’s every move.
- A client was harmed by engaging in a personal relationship with a caregiver. The client believed the caregiver was acting under the approval of the care agency.
- Agency staff failed to instruct and educate clients on the appropriate use of oxygen and other medical equipment, resulting in serious injury.
- A client was injured due to neglect of care because the client’s care plan was not updated after the agency was advised of new health concerns and procedures.
- A physician sends an order for medication, wound care, or another treatment that gets “lost” in the system. As a result, the home healthcare provider to whom the order was sent failed to implement the order. As a result, a patient experienced harm.
- A family member informs a non-medical home care agency of a change in the care needs. Agency staff fail to inform their employee of the change, the person under care does not receive the requested support, and is sent to the hospital emergency room.
- A hospice agency refuses or delays discharging a patient who wants to go to the hospital emergency room for treatment.
- A caregiver, not appropriately trained in dementia care, becomes angry at the client and leaves in the middle of this shift, leaving the client alone. The client falls and lies on the floor until the family arrives home.
- A hospice agency refuses to treat an infection unrelated to a hospice condition despite multiple requests from the patient. The patient dies from a minor infection that could have been treated.
- A home care agency manager fails to follow protocol in completing a background check. The caregiver assigned to a client is suspected of stealing medications, cash, and valuables that are discovered missing after the caregiver’s first shift.
These examples, along with others, are types of duty of care and standards of care violations that can be supported by home care expert witness document review, reporting, and testimony.
Why Duty of Care and Standards of Care Matter
When home care agencies accept the responsibility of caring for the elderly or persons with disabilities, they agree to ensure the safety and well-being of the individuals in their care. Family members trust and rely upon home care agencies to fulfill their responsibilities.
Issues that result in personal injury or related litigation arise when a home care agency fails to fulfill its duty of care and adhere to established standards of care, thereby failing to protect individuals from harm.
- Agency employees who are uncomfortable caring for their assigned clients should request additional training, review care standards, and discuss their concerns with a supervisor to prevent potential harm to a client.
- Care agencies that receive complaints about a caregiver must take the concerns seriously and conduct a thorough investigation into the matter.
- When appropriate, agencies can provide additional training and employee oversight. In other cases, due to the serious nature of the concern or policy violation, an employee may be terminated, and a report may be made to the appropriate agency.
Home Care Expert Witness Services
If you are a law firm seeking a home care expert witness, contact Pamela D. Wilson. Wilson provides document review, report writing, deposition, and court testimony services related to caregiving, care management, home care, dementia care, elder care, guardianship, conservatorship, and power of attorney.
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