One of the worst parts about the disease of Alzheimer’s is that it transforms the sufferer into a shell of his or her former self. Behaviors in which they might never have engaged previously now become commonplace as a side effect of the disease. Unfortunately, one of the most commonly-cited behaviors among patients is aggression.
Stemming often from fear, confusion, or an unexpected change in routine, Alzheimer’s and other dementia patients have been known to lash out by kicking, biting, scratching, hitting, punching, and flailing. What the California Supreme Court recently ruled in its 5-2 decision in Gregory v. Cott was that in-home caregivers who agree to provide care for these individuals are not entitled to sue them, their loved ones, or their estate for injuries inflicted by a patient.
The reasoning was that those hired specifically to assist these disabled persons can’t sue when they encounter a hazardous condition they are paid to confront. (The same reasoning had already been applied to nursing home staffers encountering such conditions.)
However, our Birmingham nursing home abuse lawyers know that, by this logic, a patient in a nursing home setting should expect to be protected against other patients who display aggression. This is because, unlike dementia sufferers, nursing home administrators are fully aware and cognizant of the risk posed by certain patients. They also, armed with this knowledge, have a duty to protect patients from potential harm.
That means facilities have a duty to recognize and address aggressive behaviors in residents. That could mean hiring additional staffers to keep a watchful eye on aggressors and potential victims. It could mean adjusting therapies and medications for aggressors. It could also in extreme situations warrant a discharge of patients deemed a threat to others. The latter may be an option of last resort, but vulnerable patients should not be subjected to the risk of abuse for any reason, and the facility in charge of assuring the safety of its wards needs to do what is necessary to achieve this goal.
However, the duty of care element is different when the situation is reversed, and that’s what the Gregory case was all about. Here, the court held a patient with dementia can’t be held liable for actions arising from that condition.
According to court records, the plaintiff was contracted in 2005 to help an 85-year-old man provide care to his ailing wife, who suffered from Alzheimer’s disease. She continued to live in their marital home, and the home health care provider was contracted to supervise, bathe, dress, and transport the patient, as well as do light housekeeping as needed. Having previously worked with Alzheimer’s patients, she knew they could potentially be violent. Prior to taking this assignment, she was informed by the husband that the wife sometimes bit, kicked, scratched, and flailed.
One fall afternoon, the worker was washing dishes at the sink. The husband was not home, and the wife was seated at the kitchen table. Suddenly, while the worker was washing a large knife, the wife approached from behind, bumped into her and began reaching toward the sink for the knife. In attempting to restrain the wife, the worker cut her wrist. As a result, she lost feeling in the wrist and suffered from loss of feeling and recurring pain.
The courts held she was not entitled to losses for negligence or premises liability from the husband.
The worker did, however, secure workers’ compensation for her injuries. In these instances, it seems that remedy may be the only one available for workers.
To determine the parameters of possible liability in your case, it’s important to first consult with an experienced injury lawyer.
Gregory v. Cott , Aug. 4, 2014, California Supreme Court
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Posted By: Mark Sterling Gober