June 18, 2014
One of the most difficult situations in Elder Law develops around the management of care for fragile individuals who have significant levels of dementia.
There are often competing concerns, as to how the preferences of the individual should be respected; what types of living arrangements are possible; what types of support are required; and how families, caregivers and the Department of Social and Health Services, DSHS (when involved) can work together to arrange for the best possible outcome.
A recent case brought a wide range of these factors together. (2013 WL 6633440, Wash.App.Div.1, December 16, 2013).
A married couple faced a crisis when the “Well Spouse” could no longer care for the “Ill Spouse” who had significant dementia.
Following evaluations by medical providers and DSHS, it was concluded that the Ill Spouse should be placed in a Skilled Nursing Facility, SNF, preferably in a locked dementia unit, or in a “very skillful Adult Family Home,” AFH.
The family (Well Spouse and daughter) ended up choosing an AFH. The AFH accepted the Ill Spouse for care, with extra funds to be paid for more-than-usual caregiver expenses. However, the full medical evaluation materials were not reveived by the AFH before admission.
The AFH operator quickly decided that the Ill Spouse needed a higher level of care, but the DSHS worker suggested that things might get better after a period of adjustment. In terms of evaluating the issues, there was a general lack of coordination among the family, DSHS, medical providers, and the AFH.
The Ill Spouse experienced several falls inside and outside of the AFH, and died in the hospital as a result of injuries.
The Well Spouse sued the AFH for “negligence, neglect of a vulnerable adult, and breach of contract….” A jury found for the AFH and the Well Spouse appealed.
One issue was whether DSHS had a “special relationship” with the Ill Spouse and therefore had a duty to protect her safety. The argument was made that an inaccurate medical assessment failed to protect the Ill Spouse. The Court concluded that there was no such relationship, since the actual placement was made by the family and the AFH provided the care. The DSHS assessment by itself did not create a special relationship.
The Court also concluded that “merely placing a family member” in a care facility did not create such a relationship. However, acting as agent for the Ill Spouse, to make health care decisions, did create a special family duty. The comparative negligence of the family could be considered.
The Court took an expansive position regarding the use of expert testimony.
The breach of contract claim was found not applicable to the tort action.
The Court of Appeals affirmed the trial Court.
Ultimately, there was no remedy available to the Well Spouse. Reasonable efforts were made by the family, medical providers, DSHS and the AFH. Very difficult tradeoffs had to be faced, and the outcome did not result in readily-identifiable liability for anyone involved.
Whenever Elder Law attorneys struggle to deal with such situations, perhaps the best that can be hoped for is good faith and reasonable efforts by all parties, in inherently- difficult situations with no real “solutions”.
More on Elder Law in Washington may be found in the “Elder Law” volumes of Washington Practice by Cheryl and Ferd Mitchell: Washington Elder Law and Practice (Vol. 26), the associated Elder Law Handbook (Vol. 26A), and the Washington Probate volume (Vol. 26B). These materials are available at www.legalsolutions.thomsonreuters.com.