Professional Home Health Care Workers' Assumption of Risk
HandelontheLaw.com Staff Writer
In a 4-3 decision, the California Supreme Court ruled in Gregory v. Cott that an in-home professional home healthcare worker who is trained and employed by an agency to care for Alzheimer’s patients primarily assumes the risks of being injured by an Alzheimer patient and is, therefore, confined to relief from Workers’ Compensation for relief for injuries caused by the patient.
California law has 2 different forms of assumption of the risk: primary assumption of the risk, when as a matter of law, the defendant owes no duty to guard against a particular risk of harm; secondary assumption of the risk, when the defendant owes a duty but the plaintiff knowingly encounters a risk of injury from the defendant’s breach. Here, the Court ruled that an in-home caregiver of an Alzheimer’s patient was barred from successfully bringing tort claims due to her primary assumption of the risk.
In 2005, Carolyn Gregory worked for a home health agency. Bernard Cott hired the agency to help care for his wife, Lorraine Cott, who suffered from Alzheimer’s disease. The agency assigned Carolyn to provide in-home health care for Lorraine. Bernard warned Carolyn that Lorraine “was combative and would kick, bite, scratch and flail.” In addition, Carolyn was trained to work with Alzheimer’s patients, had worked with them in the past and knew they were capable of violence. Carolyn’s duties included bathing, dressing, transporting and supervising Lorraine, as well as some housekeeping chores.
In September 2008, Carolyn was washing dishes at the kitchen sink while Lorraine sat at the kitchen table and Bernard was away from the home. As Carolyn washed a large knife, Lorraine approached her from behind, bumped her and reached toward the sink. When Carolyn restrained Lorraine, Carolyn dropped the knife, which stuck in her wrist. Due to her injury, Carolyn lost feeling in several fingers and experienced recurring pain. Carolyn received Workers’ Compensation but also sued the Cotts for negligence and premises liability, with a claim against Lorraine for battery.
The trial court granted the Defense’s motion for summary judgment and dismissed Carolyn’s suit, ruling that her claims were barred by her primary assumption of the risk. A split Appeals Court affirmed the decision. Carolyn then further appealed to the California Supreme Court.
Alzheimer’s patients belong to a class of persons having no duty to guard against a risk of harm because of public policy and the very nature of their disease. Furthermore, the risk of injury from caring for Alzheimer’s patients, who are often violent, is primarily assumed by the in-home caregiver due to public policy, the nature of the activity (voluntarily caring for a mentally incompetent and violent individual) and the relationship of the caregiver-patient. As a result, though outside of a formal institutional setting, a professional home healthcare worker who is trained and employed by an agency to care for Alzheimer’s patients cannot successfully sue for injuries caused by the patient and is confined to Workers’ Compensation for relief.
By Kathy Catanzarite
Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.
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