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LIABILITY BY PERSONAL CARE ASSISTANTS FOR NEGLIGENCE

Personal Care Assistants

Personal Care Assistants (PCA) provide outpatient care to persons who are disabled or chronically ill with their daily activities whether in the home or outside of it. PCA's assist clients with:

a) The elimination of wastes from the body;

b) Dressing and undressing;

c) Bathing;

d) Grooming;

e) The preparation and eating of meals;

f) Laundry;

g) Shopping;

h) Cleaning;

i) Transportation; and

j) Any other minor needs related to the maintenance of personal hygiene.

The assistance PCA's provide is made pursuant to care plans established by the agency providing the care. In Nevada, anyone operating an agency that employs individuals as personal care attendants to provide non-medical (services not prescribed a physician or other medical practitioner) activities of daily living to elderly or disabled clients needs to be licensed by the Bureau of Health Care Quality and Compliance. However, PCA's do not require extensive health care knowledge or training to practice their profession.

In fact, NAC 449.3977 provides for minimal requirements PCA's must achieve before providing personal care services to clients of their respective agencies. For example, PCA's are required to complete a training program where they receive training related to first aid and cardiac resuscitation, preparing written documentation, understanding client rights, special needs of elderly and disabled patients, and conflict resolution. Furthermore, if necessitated by their client's care plan, PCA's are required to understand methods and techniques for wound care, bowl and bladder care, and identification of medical conditions that may worsen and lead to more serious problems and disorders, among other requirements.

However, NAC 449.3978 provides limitations on the provision of certain types of services to clients. Pursuant to that code, the services an attendant must not provide to a client include, without limitation:

a) Insertion or irrigation of a catheter;

b) Irrigation of any body cavity, including, without limitation, irrigation of the ear, insertion of an enema or a vaginal douche;

c) Application of a dressing involving prescription medication or aseptic techniques, including, without limitation, the treatment of moderate or severe conditions of the skin;

d) Administration of injections of fluids into veins, muscles or the skin;

e) Administration of medication, including, without limitation, the insertion of rectal suppositories, the application of a prescribed topical lotion for the skin and the administration of drops in the eyes;

f) Performing physical assessments;

g) Monitoring vital signs;

h) Using specialized feeding techniques;

i) Performing a digital rectal examination;

j) Trimming or cutting toenails;

k) Massage;

l) Providing specialized services to increase the range of motion of a client;

m) Providing medical case management, including, without limitation, accompanying a client to the office of a physician to provide medical information to the physician concerning the client or to receive medical information from the physician concerning the client; and

n) Any task identified in chapter 632 of NRS and the regulations adopted by the State Board of Nursing as requiring skilled nursing care, including, without limitation, any services that are within the scope and practice of a certified nursing assistant.

Indeed, as this provision implies, PCA's are not medical providers and so cannot be held liable for falling below the standard of care established for health care professionals pursuant to NRS 41A.017. Therefore, a lower standard of care applies to PCA's approximating the usual due care standard applicable to everyone, with some provisos.

General Negligence Principles

To recover under a negligence theory, the Plaintiff must prove four elements: (1) that defendant owed him a duty of care; (2) that defendant breached this duty of care; (3) that the breach was the legal cause of plaintiff's injury; and (4) that the Plaintiff suffered damages.

Duty

Generally, a person has a duty to use due care in his daily conduct to avoid harm to others. To determine if a duty exists, the test is whether the harm to the plaintiff from the defendant's action or inaction was foreseeable. Thus, if Defendant's act or omission created a foreseeable risk of harm, the court will find a duty to use due care.

Here, Defendant was contracted and paid to provide PCA's to decedent to assist with her daily living activities. Arguably, it is foreseeable that those PCA's would be presented with a circumstance where the decedent requires emergency medical care. At the very least, Defendants may be placed in a position where they would have to report health concerns in order to avoid serious injury or death.

Indeed, PCA's are tasked with providing non-medical care to the chronically ill, disabled, or elderly and, in recognition of that, the State of Nevada requires PCA Agencies to be licensed and require minimal training to their PCA's, including first aid and wound treatment, if the personal care plan requires those activities. Therefore, PCA's have an affirmative duty to act or at least report when an emergency or likelihood of serious injury or death would result by inaction.

Breach

Once a duty is established, the Plaintiff must show that the standard of care associated with that duty was breached. In evaluating breach, Nevada courts imagine the existence of a reasonable person and ask what he would do under the circumstances as they existed at the time the injury occurred.

In a landmark case, the reasonable person standard was famously reduced to a mathematical formula. In US v. Caroll Towing Co, Judge Learned Hand held that in balancing risks to establish a reasonable person's standard of ordinary care, the probability of the harm potentially caused (P) must be balanced along with the gravity of the harm which could result (G), against the burden of conforming to a new and less dangerous course of action (B) along with the utility of maintaining the same course of action as it was (U). This is sometimes noted in shorthand as P+G v. B+U.

In the instant matter, the standard of care is less than the standard medical providers are held to but more than the average person due to the very nature of the PCA's job and the people they come in contact with in discharging their duties. The question is, in failing to act did the Defendant act unreasonably? To answer that, Judge Hand's formula is instructive.

Here, the probability of harm is high in light of the fragility of the decedent should Defendant fail to act when presented with a medical emergency; that is, inaction in the face of serious bodily injury in the instant matter presented a very high likelihood of grievous harm or death. The balance of the equation weighs the utility of doing nothing against the burden of taking action.

Had Defendants alerted either the family or medical providers of the very serious injury decedent was suffering, disaster may have been averted. That catastrophe struck is all the more tragic given the fact that it would have cost nothing and been absolutely no burden to raise the alarm. Therefore, Defendant breached his duty.

Causation

The third element that must be satisfied to prevail under a negligence theory is that the harm suffered was the result of the Defendant's negligent conduct. In determining this, Nevada courts generally apply the "but for test". That is, but for the Defendant's conduct the Plaintiff's injury would not have occurred. This test is usually expressed as a question of 'foreseeability'. Therefore, an actor is liable for the foreseeable, but not the unforeseeable, consequences of his or her act.

Thus, proximate cause is that cause which, in natural and continuous sequence and unbroken by any efficient, intervening cause, produces the injury complained of and without which the result would not have occurred. Proximate cause, or legal cause, consists of two components, cause in fact and foreseeability.

Cause in fact requires proof that the failure of a tortfeasor to use due care was a substantial factor in bringing about a Plaintiff's injury. The second component, foreseeability, is essentially a policy consideration that limits a tortfeasors liability to consequences that have a reasonably close connection with both the tortfeasor's conduct and the harm that conduct originally created.