What Are Caregiver Legal Liabilities?
Caregivers are trusted to perform tasks that span a range of responsibilities. In the Home and Community-Based Services space, they face the reality that their decision making is scrutinized continually. There is a high level of standards to which caregivers must adhere. The possibility of being found liable rests on their ability to foresee issues—an appropriate level of diligence that is not always obvious, even with a long-time client . Failure to exercise that vigilance can lead to jail time, fines and losing the ability to work within the industry, but even if nothing unfortunate occurs, poor judgment can have an adverse impact on even a trusted relationship that has been established over the years. For considering how medical malpractice, criminal negligence and other concepts will apply to your role as a caregiver, consider these very real situations that courts have had to answer: For every situation, the question is always what would a reasonable and prudent person have done in the same circumstance. Criminal negligence may involve fractions of seconds where split decisions can have life-changing results, such as:
Common Caregiver Legal Liabilities
Within the estate litigation world, the legal liability of caregivers is a serious subject that we’ve seen increasingly with the rise of in-home caregiving services. Many adult children who feel overwhelmed by the prospect of watching over aging parents in their home may hire an in-home caregiver, but not know that this caregiver is essentially acting as an agent of the family member – which can be seen as a legal liability in the eyes of the court.
For instance, the most common form of legal liability is negligence. This is the failure to exercise a reasonable standard of care that results in harm to others. In the thorniest cases of caregiver negligence, the appointed caregiver may have failed to provide adequate supervision for a senior adult parent. When it is discovered that the caregiver has violated a statutory duty of care, it can turn into a serious court case.
As an example, we represent the adult child of a mother who hired a caregiver to help her while she was physically disabled. Initially, it seemed to be very good arrangements. After some time, there started to be unexplained expenses on her mother’s credit card. Eventually, it was discovered that the hired caregiver was using the credit card. While this is the extreme end of caregiver legal liability, it turned into a very serious dispute within the family.
The most volatile element of caregiver legal liability is often an unfounded allegation of elder abuse. As the primary caretaker of an older individual, the caregiver carries the burden of knowledge regarding the safety of the person under care. The caregiver is the one who takes the charge of elderly or dependent adults into his or her home. If something untoward happens, it is the caregiver face that will and must explain why it happened, and whether it could have been prevented.
In many cases in which there is no evidence of negligence, allegations of elder abuse go hand-in-hand with negligence claims.
Still, this specter of abuse and how such explanations may stand in the way of reasonable self-defense can be intimidating. It is important caregivers know the risks and pitfalls before entering the situation so they can have documentation of their actions in advance.
There are two primary kinds of breaches of duty to look for-
1. Infliction of Harm: In some states, a caregiver who works with an elderly person (this could also be a nursing home employee, assisted living facility worker, etc.), who abuses or neglects their charge might be liable for damages to the victim. This includes harm that comes from physical, emotional, psychological, or even financial abuse.
2. Negligence: This looks at a caregiver who causes harm to the victim with no premeditated intent. This type of harm is unintentional and is often due to reckless care or otherwise poor judgment.
Caregiver’s Legal Responsibilities
As a caregiver, many legal obligations are imposed upon you by state and federal law. For example, federal health privacy laws (HIPAA) impose strict requirements upon healthcare providers and staff, such as nurses and the medical assistants they employ or supervise.
HIPAA requires covered providers to ensure that all patients sign an "auth" or authorization form to disclose protected health information (‘PHI") prior to doing so. However, you can get into trouble if you do not have a signed auth before disclosing PHI. Simply scanning your patient’s signed auth into their medical chart and then "disclosing" whatever information your patient disclosed to you (without also disclosing your patient signed an auth) is not sufficient.
Colorado law requires that a patient must give permission for their health information to be discussed with a third-party, even if the third-party is the patient’s own family member. The Colorado Medical Board takes the position that, without obtaining the proper consent, the physician or other healthcare provider commits a violation of the Medical Practice Act, presumably, even if the sharing of information with the parent or spouse was done inadvertently and of good intent.
The Colorado Medical Board publishes a simple one-page form known as the "Spring Release of Information Authorization Form (ROI Form)." The ROI Form is titled "Patient Release of Information Authorization Form" but the form is absolutely clear that it is limited to "Discussion with Family Member only." Although the ROI Form does not include language permitting a discussion of a minor patient’s protected health information with the minor patient’s parent, this release is limited to a "discussion" of the minor patient’s health information in the presence of a parent or spouse. The ROI Form states "My physician or other health care provider is allowed to discuss my condition with the person whose signature I have provided on this form." Notably, the ROI Form does not include any check boxes. Instead, there is a line with blanks allowing the patient to write in the name of the individual(s) with whom his/her health information can be shared in the space provided by signing the ROI Form.
Other mandatory legal requirements imposed upon you as a caregiver, such as mandatory child and elder abuse reporting requirements, are outside the scope of this article, but they are critically important too.
Reducing Caregiver Legal Liabilities
There are specific practices that you can adopt as a caregiver in order to minimize your legals liabilities. These include comprehensive documentation, effective communication skills, and continued education.
Comprehensive Documentation
Documentation is not just about keeping thorough notes of day-to-day personal care activities. It is essential to consistently document important life changes so that it is clear when and how you have adjusted your care as needed. For example, you need to keep a running document of how much care was needed when you started working with the patient and how that has changed over the months or years you have been working with them. When keeping notes about personal care, you should make sure:
Communication Skills
Your communication skills with the family caregivers can influence the amount of trust you build over the years you have been working together. According to AARP , about 60 percent of older adults with dementia live at home or with a family member. They need skilled caregivers who can work seamlessly with them on most personal tasks, and it is essential that you find a smooth-fitting work rhythm with the family member. You should also be communicating with the family member throughout work for any changes you see in their loved one.
Education
There are many online resources available for caregivers that can help you get up to speed on different health, psychological or environmental needs for your patient. You should also take courses that deal with specific procedures or needs. You can also get in touch with other caregivers for second opinions on healthcare issues.
Caregiver Insurance – What You Need to Know
While insurance coverage may seem like an expensive annoyance to many, consider this: As a caregiver, you are not just responsible for yourself any more. If your loved one is injured through mistakes you make in the course of fulfilling your role as the caregiver — whether it be through medication errors, scheduling mistakes, driving your loved one to appointments, or otherwise — you could be found liable for their injuries based on the claim that you acted negligently and a jury could hold you responsible for the payment of damages. Coverage to protect you under those circumstances is available with Errors & Omissions and Liability Insurance.
Caregivers do not have to own a business to have professional liability. Professional Liability Insurance may be purchased by anyone providing professional services for compensation. This is the type of coverage that covers damages caused by an error or negligent act in the performance of professional duties. The coverage can be used to cover court awarded damages as well as the cost of defense against the claims. Caregiving agencies and other employment agencies also could be at risk for claims arising from the skills and abilities of their employees. Their Professional Liability Insurance should cover damages and defense costs as well.
Every insurer is different but the most commonly covered types of allegations include:
Liability Insurance is available for both Professionals and Organizations that provide care to others. From long-term and rehabilitative medical care facilities to daycare and home residential care, Liability Insurance financially protects against damage claims caused by negligence and breach of contractions.
Caregiver Legal Help and Resources
Legal Aid Services
Legal aid services may provide free or low-cost legal assistance to low-income clients with civil matters, such as estate and advance directive planning. Sometimes there are local elder law clinics that offer free, limited services.
Professional Organizations
Your city or county may sponsor a non-profit for the aging that provides services to seniors, caregivers, and their families. Some are called "Elder Centers" and offer a variety of services to seniors, such as meals, respite, medical care, and information and referrals. If your community has one, it can be an excellent source of legal information and resources for caregivers.
Legal professionals also have access to various local, state, and national organizations that lend their support to numerous facets of the legal profession through educational and networking opportunities. The American Bar Association (ABA) has sixty-three member organizations, including state and local bar associations. Your local accountant can help you find one in your area.
Older adult professionals may find their state’s organization for elder lawyers or elder law section. For example , the Colorado Bar Association (CBA) has a Senior Law Handbook and a list of lawyers who will provide free 20-minute consultations about the handbook and estate planning generally. Find your state’s professional practice organization here.
Online Resources
Many state and local bar associations provide online directories of legal services available to the public. The American Bar Association (ABA) has a website that helps you find legal counsel, through its American Bar Association’s (ABA) Home Front Legal Information Center (HLIC), a project designed to help military families with legal needs.
For more specific examples, Utah’s eFor More Program features Elder Law Clinics. Older adults can receive assistance related to planning for incapacity and long-term care plans, including wills and advanced directives; marital property matters; estate planning; and Medicaid.
Courts may have ADR programs or centers that help resolve disputes without going through the expense and risk of litigation. Older adults can represent themselves in court, but a lot is at stake, so taking along a lawyer may be wise.
Note that most ADR services are pre-lawyer involvement, like mediation. But if you don’t know how to find a lawyer in your area, check out these resources: the American Bar Association Lawyer Locator, or your state’s local legal services referral service.