Equipment broken by therapist during therapy

[NC20]

Jurisdiction

California

I am posting on behalf of the patient's caregiver.

Patient is permanently disabled, non-communicative and receives therapy from a local company in his own home.

During an in-home session a week ago where the patient, therapist and therapist's supervisors were all present, expensive equipment belonging to the patient was broken. Caregiver was in the home but not observing the session.

Neither therapist nor her supervisor were able to explain how the equipment was demanded beyond repair except claiming that "it slid off the table". They did not blame the patient and kept repeating the same excuse multiple times.

The equipment is expensive to replace. Caregiver emailed the therapy company senior personnel, explaining what happened, and requesting that the company bear at least 50% of the cost to replace equipment. Company ignored the mails and instead directed therapist to inform caregiver that they cannot accept any responsibility for the damaged equipment.

What are the caregiver's options at this time? Also, the company has been sending her multiple emails regarding other matters pertaining to treatment while studiously avoiding the issue of the broken equipment. It may cost upward of $1600 to replace and several months (due to lack of inventory) to do so.

If she takes this to small court, what does the caregiver need to show?

Thank you so much for your help / feedback in this regard.

 

[Zigner]

Why does anyone believe the caregiver is responsible in the first place?

Is the caregiver an employee or an independent contractor? If an employee, then the employer should deal with this (though, they have the option of firing the caregiver). If an independent contractor, then she should submit it to her insurance company.

 

[NC20]

Why does anyone believe the caregiver is responsible in the first place?

Is the caregiver an employee or an independent contractor? If an employee, then the employer should deal with this (though, they have the option of firing the caregiver). If an independent contractor, then she should submit it to her insurance company.

The caregiver is the patient's family member. No one is blaming the caregiver.

The patient's equipment broke during therapy and it us the caregiver'd belieg that it was broken by the therapist and a supervisor and was likely am accident. The therapist's employer refuses to pay at least 50% of replacement cost. What are the caregiver's options at this time?

 

[Zigner]

The caregiver is the patient's family member. No one is blaming the caregiver.

The patient's equipment broke during therapy and it us the caregiver'd belieg that it was broken by the therapist and a supervisor and was likely am accident. The therapist's employer refuses to pay at least 50% of replacement cost. What are the caregiver's options at this time?

Who broke it?
What proof do you have that they broke it?

When you sue the therapist and the supervisor, you'll need to have answers to those questions. Oh, and you'll likely need to find a new therapist.

EDIT: You should also include the employer in the lawsuit. It can't hurt.

 

[zddoodah]

Patient is permanently disabled

In what regard?

non-communicative and receives therapy from a local company in his own home.

What sort of therapy?

During an in-home session a week ago where the patient, therapist and therapist's supervisors were all present, expensive equipment belonging to the patient was broken.

What sort of equipment? Broken how and by whom?

Neither therapist nor her supervisor were able to explain how the equipment was demanded

Huh?

They did not blame the patient and kept repeating the same excuse multiple times.

What excuse would that be?

Caregiver emailed the therapy company senior personnel, explaining what happened, and requesting that the company bear at least 50% of the cost to replace equipment.

On what factual basis did this caregiver base his/her request that the therapy company pay anything? If the caregiver "explain[ed] what happened," does that mean he/she witnessed the incident?

What are the caregiver's options at this time?

Absent additional facts, this doesn't appear to have anything to do with the caregiver.

If she takes this to small court, what does the caregiver need to show?

The caregiver has no standing to "take[] this to small [claims] court." Only the owner of the equipment could do that.

The patient's equipment broke during therapy and it us the caregiver'd belieg that it was broken by the therapist and a supervisor and was likely am accident.

It's best to proofread before hitting "post." I think what you probably meant here is that "it is the caregiver's belief that it was broken by the therapist and a supervisor." If so, on what does the caregiver base this belief?

 

[Zigner]

The caregiver has no standing to "take[] this to small [claims] court." Only the owner of the equipment could do that.

That is an excellent point.

 

[NC20]

The caregiver is the legal guardian of the disabled patient whose equipment was broken.

 

[Zigner]

The caregiver is the legal guardian of the disabled patient whose equipment was broken.

That doesn't change what was said above.

 

[zddoodah]

The caregiver is the legal guardian of the disabled patient whose equipment was broken.

OK. That covers one of my areas of inquiry (and would have been helpful to know up front), but I asked many other questions in my prior response. Nevertheless:

If she takes this to small court, what does the caregiver need to show?

The plaintiff will need to prove, by a preponderance of the evidence (i.e., more likely than not), that: (1) the defendant(s) owed the plaintiff a duty of care); (2) the defendant(s) breached the duty of care by failing to exercise a standard of care of a reasonable person under all relevant circumstances; (3) the breach by the defendant(s) was the cause of whatever damage the plaintiff is claiming; and (4) the plaintiff suffered damage to person or property. In other words, the plaintiff will have to prove that something the defendant(s) did or didn't do was the cause of the equipment being broken. Speculation and supposition won't cut it.

 

[Zigner]

OK. That covers one of my areas of inquiry (and would have been helpful to know up front) ...

I believe it may actually give rise to other questions. Is the "patient" an adult? I will assume that the answer is yes based on the context of the post, thus I will assume that the OP meant that the caregiver is the conservator. Is the caregiver conservator of the person, conservator of the estate or, both? Can a conservator who is not also an attorney represent someone in small claims court?

 

[army judge]

Can a conservator who is not also an attorney represent someone in small claims court?

If you are not mentally competent, or you are under 18 years old (and not emancipated), a judge must appoint a "guardian ad litem" to represent you in small claims court. A guardian ad litem is an adult appointed by the court to represent you ONLY in the case in question.

Basics - small_claims_selfhelp

 

[NC20]

The therapy company responded today claiming that the caregiver / guardian signed a personal property waiver release and that they therefore cannot pay to replace the broken equipment. However, they refused to give her a copy of the alleged waiver / liability release.

How long does the caregiver / guardian have to take this to small claims court in California?

Thanks.

 

[Zigner]

The therapy company responded today claiming that the caregiver / guardian signed a personal property waiver release and that they therefore cannot pay to replace the broken equipment. However, they refused to give her a copy of the alleged waiver / liability release.

How long does the caregiver / guardian have to take this to small claims court in California?

Thanks.

Is the "caregiver" actually the conservator of the patient? The caregiver cannot take this to court on behalf of the patient unless appointed to do so by the court, as described above.

You can check this page for a description of the statute of limitations: Statute of Limitations - getting_started_selfhelp
(It shows as 3 years on that page.)

 

[zddoodah]

The therapy company responded today claiming that the caregiver / guardian signed a personal property waiver release and that they therefore cannot pay to replace the broken equipment.

"Cannot" obviously isn't true. I'm sure the company can do it but just doesn't want to do it. That aside, if this is true and the caregiver signed in his/her capacity as legal guardian or agent of the owner of the property, and assuming competent drafting of the waiver, then that likely ends the discussion.

How long does the caregiver / guardian have to take this to small claims court in California?

Three years.

 

[PayrollHRGuy]

I doubt any waiver protects them from negligence.

 

[army judge]

I doubt any waiver protects them from negligence.

In fact, your response is intuitive.

 

[zddoodah]

I doubt any waiver protects them from negligence.

On what factual information do you base your doubt?

I'm at a loss to understand how you could have any doubt or feeling one way of the other since we've not read the waiver in question. A competently-drafted waiver certainly could shield the company from liability for negligence. That's the whole point of getting a waiver.