Here is an interesting ruling out of California. The California Supreme Court ruled that care givers cannot recover damages from their Alzheimer’s clients for any injuries stemming from the clients’ propensity for combativeness and aggression. The Court noted that care givers should know that such behavior is common in the disease’s later stages and should be prepared to handle it.
California Supreme Court: People with Alzheimer’s not liable for injuries they cause to paid in-home caregivers.
The AP (8/5, Leff) reports that on Aug. 4 by a vote of 5-2, the California Supreme Court ruled that “people with Alzheimer’s disease are not liable for injuries they may cause their paid in-home caregivers.” In its ruling, the court pointed out that “people hired to work with Alzheimer’s patients should know the disease commonly causes physical aggression and agitation in its later stages.” The majority of the court “concluded it would therefore be inappropriate to allow caregivers who get hurt managing a combative client to sue their employers.”
The Los Angeles Times (8/5, Dolan, 3.42M) quotes the ruling, which was written by Justice Carole A. Corrigan. Justice Corrigan wrote, “Those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront.” In the ruling, Justice Corrigan added, “If liability were imposed for caregiver injuries in private homes, but not in hospitals or nursing homes, the incentive for families to institutionalize Alzheimer’s sufferers would increase.” According to the Times, the court’s “ruling stemmed from a lawsuit a healthcare worker filed against a West Los Angeles couple.”
New Mexico Workers Compensation Act and undocumented workers.
The New Mexico Supreme Court recently clarified when an undocumented injured worker is entitled to full workers compensation benefits in Gonzalez v. Performance Painting, Inc., 2013 NMSC 021. A copy of the case can be located at
The opinion is important because it confirms for the first time that undocumented workers who are injured on the job are entitled to full workers’ compensation benefits if the workers meet the requirements outlined in the opinion. Additionally, the Court places responsibility on employers to take steps to avoid hiring undocumented workers.
The concurrences by Justice Chavez and Justice Daniels are especially good reads because they go further than the majority opinion. Additionally, the two Justices affirm the importance of undocumented workers in the history of New Mexico and the country in general as well as the dignity of all workers.
Before this case, workers compensation insurers and employers refused to pay full money benefits to undocumented workers. The employers argued that they could not legally rehire the injured workers because of their undocumented status. The Supreme Court decided that this was not proper especially when many of the employers knowingly hired undocumented workers.
The upshot is that undocumented workers are treated the same as documented workers under the New Mexico Workers’ Compensation Act.
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To that end, I’d like to bring to your attention a recent New Mexico Court of Appeals opinion, Gregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty, N.M. , No. 32,920 (5/19/2014). This is a workers’ compensation case that addresses the question of whether or not medical treatment using medical marijuana must be paid for by the workers’ compensation insurer. In summary, the Court held that medical marijuana could be used to treat a workers’ injuries under New Mexico workers’ compensation law as long as there was adequate proof that the treatment was reasonable and necessary.
So, if your treating doctor has offered medical marijuana as part of your treatment, it is now possible to get it as long as your doctor can show the treatment is reasonable and necessary. Unfortunately, you may have to wait until a workers’ compensation judge decides that such treatment is reasonable and necessary in your case before the workers’ compensation insurer will pay for the treatment.
I often meet with potential clients who have done internet research on various medical problems to help understand their potential malpractice claims. The Internet is a great source of information, especially information that is pertinent to medical conditions, diagnosis and treatment. Sometimes, however, the amount of information is overwhelming and much of it can be outdated and suspect. Here is a list that I recently came across that lists medical resources on the Web that are generally informative and reliable. Of course, nobody should diagnose themselves using the Internet. But these sources can be a great way to educate yourself about the basics of medical conditions.
It is difficult for many people to communicate with medical providers, especially in an emergency, or when a patient is in significant pain, or when a patient is intimidated by being in the hospital. Imagine adding a language barrier to the mix. This recent study is attempts to bring attention to the problem.
According to the research gathered in the study, three common causes for medical errors attributed to insufficient patient language proficiency were identified :
• Use of family members, friends or non-qualified staff as interpreters
• Clinicians with basic foreign language skill who try to communicate without using qualified interpreters
• Cultural beliefs and traditions that effect health care delivery.
Situations in which adverse events and medical errors were most likely to occur are medication reconciliation, patient discharge, the informed consent process, emergency department visits and surgical care.
If you or a family member have communication problems because of language barriers, make sure to request that a translator be provided to help provide medical history, to explain the consent forms, and to assist with treatment in the Emergency Room and before and after surgery.
A new study, published recently in the Journal of Patient Safety, estimates that medical errors in hospitals contribute to the deaths of 200,000 to 440,000 patients per year. If the statistics are accurate, medical errors would be the third leading cause of death in the United States, with only deaths caused by cancer or heart disease more numerous. You can read about this new study on ProPublica’s website here. In 1999, the Institute of Medicine reported that as many as 98,000 people die each year as a result of medical errors in hospitals. No matter which study is more accurate, the number of people injured by medical errors is staggering.
There are a few ways that patients can protect themselves while hospitalized. Have someone with you to act as a second set of ears and eyes. It is difficult to fully understand everything when you are sick or undergoing surgery. Keep a notebook by your bed and write down your prescriptions, contact information, and any questions that come to mind. You can discuss your questions later with your provider. Keep a bottle of hand sanitizer close by and insist that the hospital workers use it. Learn the names of your nurses and aides and make sure that they are familiar with you and your medical problems.