Wednesday, August 6, 2014

The Alzheimer's Risk

As you likely are aware, Mom is in a memory care facility, so the California Supreme Court's ruling on whether a patient (or the family of a patient) may be liable for injuries to an Alzheimer's care worker caught my attention.

Mom is in a top quality memory care facility and I am fortunate enough to be able to visit her on average of twice a week, so I have become quite familiar with (and friends with) many of the residents and their families at the facility.

Dementia and Alzheimer's (a subset of dementia) are odd afflictions - some folks, like my mom, just don't remember much of anything, but they're pleasant. They smile, joke and are overall convivial.

Others though get the worst of the disease and can be aggressive, combative and sometimes a bit scary. These folks may be old, but can be very strong - mind over matter is not just a saying!

I've seen workers hit by patients, and I, myself have been the subject of aggressive behavior by an Alzheimer's patient.

Work injuries are a very real part of the Alzheimer's care worker's occupation.

And the Supreme Court has said that work comp the only remedy for such care workers.

The majority opinion in Gregory v. Cott expressly declared that because agitation and physical aggression are common late-stage symptoms of Alzheimer's, injuries to caregivers are not unusual.

As I noted, my experience would support this observation.
Mom doesn't bite.
The majority said that the risk of injury by a patient is part of the job that professional caregivers such as plaintiff Carolyn Gregory voluntarily take on. Ergo, while Gregory's employer was liable to her under the state's workers' compensation scheme, the family that had retained her services could not be held liable in tort.

Here's the story:

Bernard Cott contracted with Gregory's employer in 2005 to get in-home care for his 85-year-old wife, Lorraine.

Gregory had training and experience in Alzheimer's care.

Bernard warned Gregory that Lorraine was combative and would bite, kick, scratch and flail.

In September 2008, as Gregory was washing dishes in the kitchen sink, Lorraine approached her from behind and began to reach into the sink. Gregory dropped the knife she was washing and moved to restrain Lorraine. As she did so, the knife struck her wrist.

The knife severed vital nerves and tendons, causing Gregory to lose the use of her left thumb and two fingers.

Gregory's employer paid her workers' compensation benefits for her injuries, but she also sought to sue Lorraine and Bernard in tort, asserting claims for negligence and premises liability.

Lorraine and Bernard moved to dismiss her claim, arguing that it was barred by the assumption-of-risk doctrine.

As applied in a workplace context, this doctrine bars a worker from suing a defendant for an injury that arose from the very condition or hazard that the defendant had hired the worker to remedy or confront.

The "firefighter's rule," which precludes firefighters and police officers from suing members of the public for the conduct that makes their employment necessary, is a variant of the assumption-of-risk doctrine. So is the "veterinarian's rule," which bars those who work with animals from suing if they are bitten by dogs during treatment.

The trial court granted summary judgment in favor of Lorraine and Bernard, finding the doctrine applicable to Gregory's work with Alzheimer's patients.

A divided 2nd District Court of Appeal panel upheld the ruling last January.

A Supreme Court majority consisting of Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Marvin Baxter and Ming Chin on Monday affirmed the 2nd DCA.

Corrigan, writing for the majority, cited a 1996 case called Herrle v. Estate of Marshall, that held institutionalized mental patients are not liable for injuries inflicted on their caretakers.

"As the Herrle court recognized, primary assumption of risk in its occupational aspect is readily applicable to the relationship between hired," Corrigan wrote Monday. Thus, as violent behavior is a known symptom of Alzheimer's, "the risk of violent injury is inherent in the occupation of caring for Alzheimer's patients."

Corrgian rejected the idea that caregivers in private homes face higher risks and should therefore be treated differently than caregivers in institutionalized settings.

However, she cautioned that she was not saying that anyone who helps take care of Alzheimer's patients assumes the risk of injury either.

"The rule we adopt is limited to professional home health care workers who are trained and employed by an agency," Corrigan said. She explained that Bernard had "contracted with an agency that promised to provide him an aide trained to manage his wife's condition," and by doing so, Bernard "paid to be relieved of a duty to protect the aide from the very risks she was retained to encounter."

Justice Goodwin Liu wrote a separate concurring opinion. He said he was reluctant to push cases such as Gregory's into the tort system because that would pit "low-wage workers and ordinary families who are poorly positioned to mitigate risks or absorb the costs of injuries" against each other and that employers of in-home health care workers were in the best position to take on the risk of injury to workers.

"As repeat players who hold themselves out as qualified and competent care providers, the agencies are far better positioned than their workers or their clients to assess risks, to devise reasonable safety measures, to provide proper training to caregivers, and to determine whether in-home care is appropriate for a patient in the first instance and on an ongoing basis as a disease progresses," Liu opined.

Dissenting 2nd DCA Justice Laurence D. Rubin, sitting on the Supreme Court by appointment took issue with both Corrgan and Liu's assumption that the workers‘ compensation system would mitigate the consequences of subjecting Alzheimer‘s caregivers to primary assumption of risk.

Rubin said he could envision multiple situations in which a caregiver will not be covered by workers' compensation and warned that having the assumption-of-risk doctrine bar any recovery for injuries suffered by such workers would leave them without any remedy.

For example, had Gregory been an independent contractor she would not have been entitled to workers' compensation benefits, Rubin noted. The same would hold true if the employer didn't carry comp insurance, or if the worker had been hired directly by the patient's family, he said.

"For these reasons, I do not believe that the potential for workers' compensation benefits provides doctrinal support for the majority's extension of primary assumption of risk to a new class of workers," Rubin concluded.

Rubin might have some argument, except the majority, as noted above, said that the ruling was specifically applicable only to workers hired through an agency. Although Rubin likely knows that there are going to be "employers" who fail to provide workers' compensation insurance ... but that's a different story.

The Court egged on the Legislature to do something about all of us old folks moving into the system:

"We encourage the Legislature to focus its attention on the problems associated with Alzheimer's caregiving," the majority said. As the number of Californians afflicted with this disease can only be expected to grow in coming years, the idea of "enhanced insurance benefits for caregivers exposed to the risk of injury" was "worthy of legislative investigation."

My guess is that in the coming legislative sessions we'll see some presumption statutes or other sort of special compensation treatment for caregiving workers at memory care facilities and agencies. And of course the cost of insurance to those employers will go up (over and above the untamed inflation in California).

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