Alzheimer’s Patient Not Liable for Injuries to In-Home Caregiver

Tuesday, August 5, 2014

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California Supreme Court Holds:

Alzheimer’s Patient Not Liable for Injuries to In-Home Caregiver

Limits Ruling to Professional Health Care Workers Trained and Employed by an Agency

By ANN ANOOSHIAN, Staff Writer

Patients suffering from Alzheimer’s disease are not liable for injuries inflicted on in-home caregivers who have been specifically hired to care for them and whose services are acquired from an agency, the California Supreme Court held yesterday.

“California and other jurisdictions have established the rule that Alzheimer’s patients are not liable for injuries to caregivers in institutional settings,” Justice Carol Corrigan noted, announcing:

“We conclude that the same rule applies to in-home caregivers who, like their institutional counterparts, are employed specifically to assist these disabled persons. It is a settled principle that those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront.”

Corrigan continued:

“This conclusion is consistent with the strong public policy against confining the disabled in institutions. If liability were imposed for caregiver injuries in private homes, but not in hospitals or nursing homes, the incentive for families to institutionalize Alzheimer’s sufferers would increase. Our holding does not preclude liability in situations where caregivers are not warned of a known risk, where defendants otherwise increase the level of risk beyond that inherent in providing care, or where the cause of injury is unrelated to the symptoms of the disease.”

Her opinion affirms a 2013 decision by Div. Five this district’s Court of Appeal. That court held, in a 2-1 decision, that Los Angeles Superior Court Judge Gerald Rosenberg correctly granted summary judgment in favor of Alzheimer’s patient Lorraine Cott based on primary assumption of the risk.

Injury in Kitchen

The plaintiff, Carolyn Gregory, was injured while caring for Cott in 2008. She was washing dishes, with Cott sitting at the kitchen table.

As Gregory was washing a large knife, Cott approached her from behind, bumped into her, and reached toward the sink. When Gregory attempted to restrain Cott, she dropped the knife, which struck her wrist.

As a result, Gregory lost feeling in several fingers and experienced recurring pain. Gregory received workers’ compensation.

She sued the Cott and her husband for negligence and premises liability, with a claim against Cott for battery.

At trial, it was established that Gregory was trained to care for Alzheimer’s patients, and had done so in other assignments. She was aware these patients had a potential to be violent.

It was conceded that the husband, Bernard Cott, had informed Gregory that his wife could be combative and “would bite, kick, scratch, and flail.”

Doctrine Bars Recovery

Corrigan noted in yesterday’s opinion that primary assumption of risk is a complete bar to recovery. It applies “when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm,” she said.

Pinpointing the intended scope of the opinion, Corrigan wrote:

“We do not hold that anyone who helps with such patients assumes the risk of injury. The rule we adopt is limited to professional home health care workers who are trained and employed by an agency. Although Gregory now claims the training she received from her employer was insufficient, she expressed no reservations about the adequacy of her training in her deposition testimony. In any event, the important consideration is that Bernard Cott contracted with an agency that promised to provide him an aide trained to manage his wife’s condition. By doing so, he paid to be relieved of a duty to protect the aide from the very risks she was retained to encounter.”

Corrigan said in a footnote:

“We have no occasion here to consider the policy implications of claims by other hired caregivers.”

Gregory argued that she was both a housekeeper and a caregiver and that the injury sustained was in connection with the former role. Corrigan responded:

“If Gregory had been retained as a housekeeper, primary assumption of risk would not bar her action because she would not have been hired to manage the risks posed by Lorraine’s dementia. But Gregory worked for a home health care agency, not a housekeeping service. The circumstance that her duties included some housekeeping does not alter the central reason for her employment: Lorraine’s inability to care for herself due to Alzheimer’s disease. This fact establishes their relationship as caregiver and patient, and supports the application of primary assumption of risk. It is undisputed that Gregory’s duties included constant supervision of Lorraine, to protect not only Lorraine but also Bernard and Gregory herself.”

Argument ‘Not Persuasive’

Corrigan wrote that “as to the fundamental question of duty, Gregory’s attempts to distinguish home health care workers from those employed in institutions are not persuasive.” She explained:

“In each setting, caring for patients with Alzheimer’s dementia is the ‘nature of the activity.’ Caregivers are hired to protect the patients from harming themselves or others. If a patient injures a caregiver by engaging in the combative behavior symptomatic of Alzheimer’s disease, the ‘particular risk of harm that caused the injury’ was among the very risks the caregiver was hired to prevent.”

Corrigan noted that “our holding does not preclude liability in situations where caregivers are not warned of a known risk, where defendants otherwise increase the level of risk beyond that inherent in providing care, or where the cause of injury is unrelated to the symptoms of the disease.”

Concurring Opinion

Justice Goodwin Liu penned a concurring opinion. He wrote:

“Ultimately, for me what tips the balance in favor of primary assumption of risk is that the tort system does not appear to be the proper forum for ensuring adequate compensation for on-the-job injuries suffered by home health aides, at least in cases like this one.”

He went on to explain:

“Given the broad scope of the workers’ compensation scheme, which precludes Gregory from suing her employer in tort, courts have limited risk-allocation mechanisms to address the difficult problems this case raises. I am reluctant to push these problems into the tort system because that approach conceives of cases like this one as private disputes between low-wage workers and ordinary families who are poorly positioned to mitigate risks or absorb the costs of injuries. What this case really presents is the broader policy issue of how to improve the safety, training, and protection of workers in home caregiving arrangements. Like every member of the court, I believe this issue is worthy of the Legislature’s attention.”

Rubin’s Dissent

Court of Appeal Justice Lawrence D. Rubin of this district’s Div. Eight, serving on assignment, filed a dissenting opinion, in which Justice Kathryn Werdegar concurred.

“I do not believe that either the facts or public policy support making in-home caregivers another category of worker, joining firefighters, police officers, and veterinarians, who suffer an unusual restriction, in the guise of primary assumption of risk, of their right to recover from third parties for on-the-job injuries,” Rubin wrote.

Acknowledging that hospitalized Alzheimer’s patients have been held immune from liability for injuries they inflict, the jurist drew this distinction:

“The institutionalized Alzheimer’s patient…has little or no liability, but neither does the patient have any control or authority over the workplace. The patient’s lack of authority squares with the patient’s absence of liability.

“A private home is different. There, the family has extensive, if not exclusive, control….

“Because family members retain control, family members should likewise retain liability. But the court’s decision today weakens the link between control and accountability by relieving the family from needing to be concerned about dangers to the in-home caregiver so long as those dangers arise from the family member’s Alzheimer’s disease.”

Attorneys on appeal were Alexander J. Petale for appellant Gregory, and former Court of Appeal Justice Margaret Grignon and Tillman J. Breckenridge of Reed Smith and Richard S. Gower and Gregory J. Bramlage of Inglis Ledbetter Gower & Warriner for Bernard and Lorraine Cott.

This case is Gregory v. Cott, 14 S.O.S 3205