Advancing Attendant Care Claims

Written by Jan Marin, Senior Associate & Lawyer   A refresher on the law and strategies can be helpful. In particular, for areas such as attendant care claims, which have the potential to generate significant damage awards. Typically, a significant portion of future care costs come from the plaintiff's attendant care needs, that is, assistance with activities of daily living that the person would be able to complete without injury. In some cases, it can be hundreds of thousands of dollars annually. For this reason, it is incredibly important to have a solid grasp on this area of the law. I hope to provide some insights, tips, and tricks for advancing attendant care claims.   Institutional vs. Community Professionals vs. Family Care A plaintiff and/or their family members should be fully compensated for the care they will require. This means that they are entitled to the market cost of purchasing the care they will need for life even if family members are currently providing attendant care and not spending money out of pocket. If possible, care in a community-based model (i.e., from home vs. an institution) is preferred, even if the cost may be more. Courts have found it reasonable for a person to want to live in a home of his or her own.[1] If an injured person requires attendant care, (s)he is entitled to full compensation regardless of whether the services will be provided by a professional or by a family member. The Supreme Court has been clear that "a wrongdoer cannot benefit of services donated to the injured party."[2] In Crawford v. Penny[3] the court found that it would be unreasonable to impose obligations of care on the plaintiff's family. "While I have no doubt whatsoever that her family will continue to participate in Melissa's care and provide companionship to her, Melissa is nevertheless entitled to 24 hour care supervision from others." Justice Spiegal, in Matthews Estate v. Hamilton Civic Hospitals[4], 2008 CanLII 52312 (ON SC), held that "[i]t is the nature and quality of the services provided and their value to the person injured rather than professional qualifications of the care provider that should govern the assessment." Again in Sandhu et al. v. Wellington Place Apartments et al.[5] the court found that market rates were allowed as claimed at the full agency rates for the level of service.   Developing the Future Care Plan & Proving the Need A key element of developing the future care plan is input from the team supporting the client, including doctors, occupational therapists, neuropsychiatrists, etc. Anecdotal information from the plaintiff's family, friends, treatment providers, tutors, and rehabilitation team can also be helpful. Future cost of care experts are no longer able to testify broadly on the future care needs of the plaintiff. The courts have held that future care planners are qualified only to determine costing and product life cycles. The courts have also been critical of future care experts who step outside of their expertise or fail to consult with a plaintiff's treatment team.[6] Each future care item, including attendant care services, must be supported by someone qualified to give the opinion that the plaintiff requires a particular piece of care. The best practice is to get a letter or report from the qualified expert containing the opinion that the person is qualified to give. If counsel intends to rely on an expert or treating health provider for the belief that a particular item of care is needed, then that person must testify, or a report must be filed on consent. While providing the supporting foundation for future care claims may seem burdensome, it significantly bolsters a plaintiff's future care expert's opinion. It is highly unlikely that the recommendations of a responding defence future care report will rely upon the supporting opinions of other experts.   Developing the Attendant Care Costs Claim There are two key areas where the defence will seek to reduce the value of an attendant care claim: 1) the type of care provider required and 2) the number of hours of care required. In determining the level of care needed, consider whether the injured person requires the care of a Nurse (RN), a Personal Support Worker (PSW) or a Rehabilitation Support Worker (RSW). These professionals have different skill levels, and the cost differences are significant. Providing specific examples will be vital to convincing a jury of the need for a particular care provider over another. Examples may include specific times nursing care will be critical over PSW services. You might also provide an example of when an RSW could provide skilled cueing to a brain-injured plaintiff to increase, maintain, or develop relationships or recreational pursuits is critical. With respect to the number of hours of care necessary, there are several considerations. Does the plaintiff require overnight care? Is overnight care, ‘awake care' or merely having a provider present? In cases of children with seizure disorders who can choke in the night, having an awake care provider is critical. In cases where the provider only needs to be available in the case of an emergency, ‘awake care' is not necessary, and reduces the cost. In Morrison v. Grieg[7] the defense submitted that the quadriplegic plaintiff would require merely a call service with a 30 minute response time, rather than 24-hour emergency care. The court rejected the submission on the basis that in the case of an emergency, the plaintiff would need someone there to address the danger in real-time, rather than having to wait for a call service to dispatch a personal care worker. Again, examples are key. Other considerations with respect to hours, deal with plaintiffs who require intermittent care. For example, they require assistance with bathing, meals, or dressing but do not need 24/7 care. In these cases, if the total daily time might be 2 or 3 hours. Adding up the time for the necessary care ignores the professional reality that service providers will not be able to ‘pop' in for 15 minutes at various times throughout the day. There are minimum time blocks to consider. Counsel should ensure their future care expert contacts various agencies operating near the plaintiff's home to determine what the minimum time blocks are. For children, you will invariably face the argument that children by nature will require 24/7 care until they are 11 or 12 years old. So, is there any attendant care claim to be made for these early years? Yes. Children with extraordinary needs require extraordinary care. There will be some primary care that all children require, and this time will be deducted from the total attendant care needs. In MacGregor v. Potts[8] a birth injury case, the plaintiffs claimed that the baby would require 24-hour attendant care by an RN. The defence took the position that no extraordinary care would be necessary during the nighttime hours. Ultimately, the court determined that there would be some nights that the infant plaintiff would require extraordinary care. For this reason, the court provided overnight care for 12 weeks a year, which would be provided by the plaintiff's mother. A similar argument to above occurs about plaintiffs regarding their elder years. Courts have held that while it is common for the elderly to live in care homes eventually, it is reasonable to assume that those with a disability will continue to require extraordinary care. For this reason, they will require additional services above and beyond those offered traditionally for elderly residents of a care facility.[9]   Additional Considerations In cases involving significant attendant care over long periods, consideration should also be given to the discount rate. The Rules of Civil Procedure prescribe the discount rate to use for an award for future pecuniary damages. However, the prescribed rate may be adjusted if it does not accurately reflect "the difference between the estimated investment and price inflation rates." Many argue, and the courts have accepted that health care costs are increasing faster than the rate of inflation.[10] In order to take advantage of this provision, particularly for attendant care claims (but also health care costs generally), counsel will be required to call the evidence of an economist. In addition, counsel should have their actuary or accountant value the services at both the prescribed and reduced discount rates to provide all parties and the court with the necessary information to advance this argument successfully. Counsel must not gloss over the importance of these claims. Giving due consideration to an attendant care claim, understanding the law and establishing the evidence required to make these claims can make a significant and material difference to the ultimate settlement or judgment you will achieve for your client.   [1] Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. [2] Vana v. Tosta, [1968] S.C.R. 71. [3] Crawford v. Penny, [2003] O.J. No. 89 at para 304. [4] Matthews Estate v. Hamilton Civic Hospitals, 2008 CanLII 52312 (ON SC) [5] Sandhu et al. v. Wellington Place Apartments et al., (19 June 2016) (ONSC) [unreported], upheld by the Court of Appeal (2008), 291 DLR (4th) 220 (ON CA). [6] Song v. Hong, [2008] O.J. No. 950 (S.C.J.); Frazer v. Haukioja, [2008] O.J. No. 3277 (S.C.R.) [7] Morrison v. Greig, [2007] O.J. No. 225. [8] MacGregor v. Potts, [2009] O.J. No. 3581. [9] Brodeur (Litigation Guardian of) v. Provincial Health Services Authority, 2016 BCSC 968. [10] Walker v. Ritchie, [2005] O.J. No. 1600 (C.A.), reversed on the single issue of cost premium at SCC; and Roberts v. Morana, 1997 CarswellOnt 3101