99% of non-medical home care liability claims are one of the following:
- Car accident
- Client fall or other injury
- Damage to a client’s property
- Theft of a client’s property
On-the-Job Car Accident
Most home care agencies provide some level of transportation to clients, or have employees that drive from one home to another. On-the-job driving should terrify every home care agency owner. An easy scenario to illustrate the risk: An employee is driving a client to an appointment and runs over a pedestrian; the pedestrian is dead and the client is injured; the employee is at fault. The dead pedestrian’s family hires a smart attorney who then sues both the employee and the employer for damages sustained. The client also sues for damages. The caregiver files a workers compensation claim (we will cover that in a separate article) and thinks her employer should fix her car. You now have a problem and likely some questions.
- Do I have insurance to cover this?
Make sure your insurance package includes Hired and Non-Owned Auto coverage. It can be expensive, but so is covering this out-of-pocket.
- Do I really have to fix my employee’s car?
Nope. The automobile insurance on the vehicle being driven (no matter if it is the client’s car or the caregiver’s car) is primary, meaning first in line to pay a claim, and it is the only insurance that fixes the car.
- What can I do to prevent this?
Consider waivers prior to transporting clients (waivers of all kinds are posted here: www.homehealthins.com/resources). They don’t hold up, but can help in certain circumstances.
Have a standard for an acceptable driving record. Our recommendation is no more than two moving violations in the last three years and no DUI/DWI/Reckless in the past seven. Make motor vehicle record checks a normal part of your hiring process, and don’t hire caregivers that miss this standard.
Verify that insurance is in place on any vehicle being driven on-the-job. Remember, you sit in excess of the liability limit in place on the primary automobile insurance. You want to make sure you are excess of something.
Fun fact: In an insured group of 3,000 home care agencies, over 20 years, auto accidents are #1 in claims dollars paid every single year. They don’t happen much, we have between three and twelve auto claims a year, but when they do happen they tend to be huge.
Client Fall or Other Injury
A replacement caregiver (the regular called in sick) left a client on the front porch steps, because she (the replacement caregiver) forgot her coat inside. It was cold with light snow falling. The caregiver was only gone for a second. An instant, really. And when she got back the client was at the foot of the stairs in a heap. The care plan cited the client as a fall risk and instructed that a caregiver always be within 3 feet of the client except when the client was sitting or in bed. Uh-oh.
Fun fact: Client was wife of famous (deceased) actor.
Damage to a client (of any type, not just falls) is always a professional liability claim. Any reasonable home care insurance package will include professional liability.
Prevention?
- Remind caregivers to know the care plan and stick to it.
- Hoyer lift glitch is a common claim, mostly due to failure to buckle properly. Train excessively when deploying Hoyer lifts.
- It is always better to send a replacement caregiver than to send no one at all. But, a replacement caregiver protocol should be followed to make sure the replacement knows the plan and is reasonably qualified to provide services.
Damage to a Client’s Property
Most property damage claims are simple – caregiver was cooking in the kitchen and started a fire, or caregiver flushed wipes down the toilet resulting in backup and water damage, or caregiver moved the sofa and scratched the floor. And they cover the entire spectrum from minimal to catastrophic.
“But, but, but our client agreement holds us harmless for damage to a client’s home”! That’s fantastic, but it is not typically the client that makes claim; it is the client’s homeowners insurance carrier. Big homeowners carriers (State Farm, Allstate, Travelers) have entire buildings full of staff dedicated to subrogation (a fancy word that means ‘blame someone else and collect money’). They know how to walk through your hold harmless clause.
Fun Fact: Our biggest property damage claim ever occurred on the grounds of a convent. A caregiver lit a votive candle for a retired nun, and placed it on a table in front of an open window. Wind moved the drape to the candle and the whole place burned to the ground. No one was hurt, thankfully, but the building replacement cost was more than $900,000.
Damage to a client’s property is always a general liability claim and any reasonable home care liability program will include this coverage. Make sure, however, that there are no devious sub-limits for damage to a client’s property – we have seen some pop up in various programs.
Prevention?
Most property damage claims occur because caregivers make boneheaded decisions.
Homecare Agency Owner: ‘But Janice, why did you leave the stove on when you took a personal call at work?’
Janice: ‘Because it was an important call!’
Homecare Agency Owner: ‘But why not turn the stove off, and then take the call?’
Janice: ‘I forgot.’
It is tough to lose control around this level of incapacity.
Theft of a client’s Property
Caregivers are coming up with increasingly inventive ways to steal from clients. In simpler times, caregivers took stuff – antique silver sets, cash, pain pills, coin collections. And while that still happens, increasingly we see theft of intangible items – caregiver uses client’s bank account to pay student loans (for three years); caregiver convinces early-dementia client to buy her a brand new car; caregiver takes out credit card in client’s name.
For those that like to doomscroll, Google ‘Caregiver Theft Los Angeles’.
Fun fact: Recovery of stolen items is most often found at the pawn shop closest to the caregiver’s home. Master criminals these are not.
Commercial crime coverage responds to employee theft. Key points:
- Look for a 3rd party theft endorsement that extends coverage to theft from a client’s home.
- Make sure the 3rd party theft endorsement does not require a conviction of the caregiver in order to pay the claim.
- A typical insurance limit is $25,000 per employee. Consider a higher limit, particularly if services are provided in a major metropolitan area.
- If using independent contractors, make sure your crime coverage extends to them.
Best practice prevention: criminal history check upon hire, in at least the last three known residence counties, and a standard of not hiring anyone with a felony of any kind, or a misdemeanor theft or elder abuse conviction.
David Dickey
The Solutions Group makes it fast and easy to secure Home Care Liability Insurance, Bonding and Workers’ Compensation. No Pushy Sales Tactics – We Offer A Quote and Leave You Alone.