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Petitioner Claims Respondent Failed to Provide Proper Services in Guardianship Case



The simple description of the cause of action in this endorsed complaint, “failure to provide proper services,” belies the difficult legal and human issues that are presented by this claim by a daughter, on behalf of her incompetent mother, against the brother and wife who took the mother in, and against the agency that provided home care services.

Plaintiff DJ is the guardian of the person and property of SN, who is now 75 years old and resides in River Manor Care Home. As described in the order appointing Ms. DJ to serve as her mother’s guardian, mother SN “suffered a stroke that has rendered her aphasic she has partial paralysis, can no longer swallow. she is nonambulatory her cognition is nonexistent and she suffers from hyperthyroidism and vascular dementia.” From February 1998 until October 2001, mother SN resided with her son, defendant RN, and his wife, defendant JN. During that period, she received home care services from defendant Rockaway Home Attendant Services, Inc., a licensed home care services agency. In October 2001, mother SN was hospitalized for a month, and then transferred to the nursing home.

Ms. DJ alleges that mother SN was neglected by RN and JN and by Rockaway in that, among other things, she was not properly medicated, and was not given adequate food and water, with the result that she suffered serious physical harm. Ms. DJ was supported at trial in these charges by two sisters, Alice Gordon and Linda SN-Watts. Of course, Mr. and Ms. SN and Rockaway deny the allegations. The Newtons contend that this lawsuit is a manifestation of guilt on the part of Ms. DJ and her two sisters because they did not sufficiently attend to their mother when she was in a position to appreciate their attendance.

Before addressing the merits of this dispute, there are two threshold matters that require resolution: the status of the suit as against a defendant named as “Faye Baker,” who has not appeared, and a motion to dismiss by Rockaway based upon the failure of Ms. DJ, who is unrepresented by counsel, to designate her representative capacity in the summons with endorsed complaint.

Although known to Ms. DJ and Mr. and Ms. SN as “Faye Baker,” it appears that the name of the home attendant who assisted mother SN is Shazia Bakaralli. There are two affidavits of service, but neither is sufficient to establish jurisdiction over Ms. Baker/Bakaralli. An attempt to serve her at her purported residence was unsuccessful, the affidavit showing that the process server was told that “Faye Baker” did not reside at the address, and neither affixation nor mailing having taken place. Service was attempted twice at the office of defendant Rockaway, but the testimony at trial was that the attendant was no longer employed by Rockaway when service was attempted, and that no one from Rockaway delivered the summons with endorsed complaint to her. The claim is dismissed as against “Faye Baker,” without prejudice to refiling; this opinion will not address in terms the viability of a claim against the home attendant personally.

The summons with endorsed complaint is dated January 7, 2003, based upon an application for a pro se summons of the same date. “DJ” is designated as plaintiff. An order appointing guardian of the person and property of SN was signed by the Honorable Ariel E. Belen on November 12, 2002, and the commission issued on January 30, 2003 after Ms. DJ filed a suitable bond. “In the absence of some express limitation, a cause of action in favor of an incompetent, arising either under the common law or conferred by statute, may be prosecuted by a special guardian.” Here, Justice Belen’s order gives Ms. DJ the power to “defend or maintain any civil proceeding” on behalf of SN.

Whether the addition to the caption of Ms. DJ’s representative capacity is deemed an amendment of the summons and pleadings, or the addition or substitution of a party, it is supported by the CPLR and case law.

No possible prejudice can result to defendants. A document introduced into evidence by Rockaway summarizes a telephone conversation on December 17, 2002 between Ms. DJ and a Rockaway representative, during which Ms. DJ apparently said that she would be filing a claim based upon neglect of her mother. The answer in person filed by HM, Executive Director of Rockaway, although ineffective as an appearance by the corporation, shows that Mr. HM understood on January 28, 2003 that the action might relate to the services that Rockaway rendered to mother SN. When the case was first on the calendar on February 21, it was conferenced both by this Judge’s court attorney and separately by volunteer mediators. More than three months before the trial on June 3, therefore, the parties knew that Ms. DJ was complaining about the neglect of mother SN.

Recognizing, however, that Ms. DJ may pursue a claim on behalf of mother SN does not mean that mother SN has a viable claim against either her son and daughter-in-law or against the contractor that provided home care services. Those issues involve questions of duty and breach that do not appear to have been previously addressed by a New York court.

Again, however, removal of any bar of immunity does not establish that Mr. SN or his wife breached any duty to mother SN. “There was, at common law, no legal duty upon a child to support his parents.”

There have been statutes imposing liability on a child for a parent’s support, which could be enforced by criminal or civil proceedings, including an action by the needy parent, but the most recent were repealed in the mid-1960s.

The last of the statutes requiring a child to support a needy parent were repealed in connection with the then new Medicare program, in part to lift, what was deemed, a “burden of support.” And so, “absent agreement or other definitive obligation, this State, as opposed to some others does not hold a child liable for the support of his or her parent.” Moreover, it is not at all clear that the statutory duty to support that once existed would encompass a duty to provide needed care or medical attention.

In the somewhat analogous arena of parental liability to a child, the Court of Appeals has held that “a child does not have a legally cognizable claim for damages against his parent for negligent supervision.” In addition to the “prevention of family discord and the correlative concern to preserve the family’s resources for the aid of all its members”, the Court noted other policy considerations that weighed against allowing the cause of action: “the potential for abuse of a negligent supervision claim when brought in a retaliatory context between estranged parents”; the “difficulty of judicial delimitation, either by court or by jury, of the bounds of the asserted right to supervision”; a danger of “circumscrib[ing] the wide range of discretion a parent ought to have in permitting his child to undertake responsibility and gain independence”; the “different economic, educational, cultural, ethnic and religious backgrounds which must prevail”; and recognition that supervision is uniquely a matter for the exercise of judgment.

The Court subsequently extended its reasoning to preclude a cause of action for negligent supervision “between unemancipated minor siblings.” But lower appellate courts have allowed the claim against grandparents with temporary custody and control, and even against a parent who voluntarily assumed a duty to supervise a child in a particular activity. These latter results are consistent with the reality that the “law typically recognizes liability for breach of supervisory duty for those who afford child care in the shoes of parents” and with broader principles of tort law that permit recovery for breach of a duty voluntarily assumed.

And so, even without compensation, when defendants undertook to control a young child and provide care for her, they became responsible for her injury through their negligence. The law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care.

In other states, assumption of responsibility for the care of an elderly person can create a common-law duty that is breached when neglect results in harm, and supports criminal liability either under general criminal statutes.

In New York, until recently, there was no statute that specifically penalized the causing of harm to an elderly person. Effective November 1, 1998, as will be described more fully below, it is a crime to endanger the welfare of an elderly person, as defined in Penal Law §§ 260.32 and 260.34. Before that, no reported decision found by this court applied the general criminal law to harm caused to an elderly person. There are numerous decisions, however, in which criminal liability was based upon harm to a child by a person not the child’s parent who assumed responsibility for the child’s care, even if only for a short period of time. More than a century ago, a “defendant, having the charge of the infant child named, did unlawfully and feloniously suffer and permit the death of the child, by willfully neglecting, without lawful excuse, to supply it with proper food, clothing, and care.”

The statute defines a “caregiver” as a “person who (i) assumes responsibility for the care of a vulnerable elderly person pursuant to a court order; or (ii) receives monetary or other valuable consideration for providing care for a vulnerable elderly person”; and defines a “vulnerable elderly person” as a “person sixty years of age or older who is suffering from a disease or infirmity associated with advanced age and manifested by demonstrable physical, mental or emotional dysfunction to the extent that the person is incapable of adequately providing for his or her own health or personal care.”

This court has little difficulty in concluding that a child who assumes responsibility for the care of a parent who is limited by age or illness, or both, owes a duty to the parent to use reasonable care, and will be liable for harm caused by the failure to use reasonable care by affirmative act or omission. The conclusion is supported by “common concepts of morality and logic.

It is unnecessary and would, perhaps, even be inappropriate, for this court to generally define the circumstances that would constitute an assumption of duty or might qualify the parent as sufficiently “dependent” or “vulnerable.” Here, mother SN resided with her son and daughter-in-law, and, as will appear, they took control of all of her income, presumably to use for her benefit. Because of her physical and mental condition, mother SN was progressively dependent upon RN and JN, and upon the home care attendant that she herself could not effectively supervise, for all of her medical, nutritional and other personal needs. Also, although not determinative, and without suggesting that they acted inappropriately, there was testimony that RN and Joan inhibited or discouraged participation by RN’s siblings, with the potential consequence at the least of mother SN’s further dependence on RN’s and Joan’s care.

The court is mindful that many of the considerations that led the Court of Appeals to refuse to recognize a child’s claim for negligent supervision by a parent would resonate as well on a parent’s claim for neglect by a child. And this court is well aware that the individuals before it are siblings, necessarily exercising their own feelings and conflicts as they argue the interests of mother SN. But the court believes that these concerns can be ameliorated by careful attention to the many factors balanced on a determination of breach of duty.

The New York Legislature has declared that the “provision of high quality home care services to residents of New York state is a priority concern”, and mandated the regulation of home care services as they are provided by, among others, licensed home care services agencies and certified home health agencies. When home care services are provided pursuant to the Medicare or Medicaid programs, there is additional regulatory involvement by federal and local authorities, including the United States Department of Health and Human Services, the State Department of Social Services, and the City Human Resources Administration (HRA).

Generally, the institutional custodian of a person with physical or mental limitations owes a duty of reasonable care to protect the person from injury, with the “degree of care owed. commensurate with the [person’s] capacity to provide for his or her own safety.”

Relying upon these authorities, the Second Department has held that home care agencies may be liable when an elderly person or a person with a disability suffers traumatic injury because a home care attendant was either not present when she/he should have been or was not sufficiently attentive.

Virtually all of the decided cases have involved traumatic injury. “The overwhelming majority of civil cases against nursing homes arising from the treatment of residents involve falls.” But in Goldberg v Plaza Nursing Home Comp., the Court recognized a claim based on negligence when the failure of nursing home personnel to respond to a patient’s call for help may have resulted in confusion, agitation, and cardiac arrest.

By statute, New York makes a residential health care facility liable to any patient for the deprivation of “any right or benefit created or established for the well-being of the patient by the terms of any contract,” or by any federal or state statute, code, rule or regulation; “as an affirmative defense,” the facility may establish that it “exercised all care reasonably necessary to prevent and limit the deprivation and injury.” The statute provides for “minimum damages” of 25% of the “daily per-patient rate of payment” established for the facility, as well as attorney fees.

“The clear intent of this statute was to expand the existing remedies for conduct that, although constituting grievous and actionable violations of important rights, did not give rise to damages of sufficient monetary value to justify litigation.” The “statutory basis for liability is neither deviation from accepted standards of medical practice nor breach of a duty of care,” but rather the “deprivation of a right conferred by contract, statute, regulation, code or rule.” A cognizable cause of action can be based on the failure to prevent the development of pressure sores and the failure to maintain adequate nutrition.

Like this statute, the developing common law should recognize the “vulnerability and dependence of abused or neglected elders, especially those whose infirmities ”mental or physical” leave them at the mercy of their caregivers and those who are physically isolated in their own homes or the homes of their relatives.” There is no reason in principle to limit the duty of a home care provider to the prevention of traumatic injury, thereby excluding liability for longer-term neglect that can have even more serious consequences. A provider should at least be liable for the failure to discharge those duties that it contractually undertook to discharge.

Prior to moving into the second-floor apartment in the building owned by her son and daughter-in-law (Mr. and Ms. SN lived in the first-floor apartment), mother SN was receiving home care services from United States Home Care three days each week, four hours each day.

Rockaway’s home attendant task assignment sheet for mother SN dated February 13, 1998 shows that, initially, home care services were provided by Rockaway on the same schedule. The assignment sheet noted mother SN’s limited mobility and forgetfulness.

In medical requests for home care dated November 4, 1999, November 14, 2000, and February 22, 2001, mother SN’s doctor recommended increases in home care services. The 2001 request states:

“Presently, Mrs. SN is receiving 4 hours a day 7 days a week. During the hours of 1 PM and 7 PM, Mrs. SN is home alone which makes it quite dangerous for a woman with her mental and physical limitations. Please increase her hours that she would have eight hours a day, 5 days a week and 4 hours on Saturdays and Sundays.”

Mother SN’s home care services were increased to the level recommended by her doctor. According to Ms. DJ, these services were paid for by Medicare and Medicaid, but mother SN was required to pay $24 each month.

Mother SN moved at some point from the second-floor apartment to the first floor, where she was given the master bedroom with bath in Mr. and Ms. SN’s apartment. Thereshe stayed until she was hospitalized in late October 2001. Ms. DJ contends that neglect by Mr. and Ms. SN and Rockaway in failing to properly medicate, feed and hydrate mother SN caused the serious deterioration in her condition that required hospitalization. Ms. DJ presented hospital records apparently from New York Methodist Hospital and a statement from a Dr. Alan P. Goldman, but the hospital records are not certified, and the doctor’s statement is not sworn to or affirmed. None are admissible as evidence to establish mother SN’s physical or mental condition.

Because Ms. DJ is not represented by counsel, it is not surprising that she has not presented evidence in admissible form. Her pro se status, however, does not relieve her of any requirement that there be expert medical opinion in admissible evidentiary form to establish mother SN’s physical and mental condition and any causative factors that may have been contributed by defendants.

Ms. DJ, her husband, and her two sisters, Alice Gordon and Linda SN-Watts, testified to occasions when they visited mother SN and found her alone, or telephoned without response. Ms. DJ testified that she visited her mother every other week, twice each week, once on a weekday and once on the weekend. She found her mother alone at times that, she believed, the home attendant should have been there, but Ms. DJ did not quantify these incidents or specify when they occurred. Ms. Gordon testified to four visits during the year 2000 when she visited on a weekday during the home attendant’s scheduled hours and found her mother alone. She told of a Saturday visit when the home attendant should have been present, but she found her mother alone in circumstances that can be described as unpleasant and degrading. Ms. Gordon would also find her mother alone in the evening before Mr. and Ms. SN returned from work, having obtained the key from the home attendant, who lived nearby. Ms. SN-Watts testified to visits twice each month, and to finding her mother alone approximately six times. It is not clear that these occasions were during the home attendant’s hours. All three sisters testified that Mr. and Ms. SN discouraged visits and placed restrictions that prevented the sisters from doing more for their mother.

In addition to the home attendant’s absences, both Ms. DJ and Ms. Gordon were concerned about their mother’s eating. Mother SN was “always hungry,” but she would be found with cold food on a tray. Ms. DJ acknowledged that mother SN could be difficult about food and that, as her condition worsened, it was necessary to put food and her medications in her mouth. The sisters spoke to the home attendant about their concerns. After mother SN was hospitalized, Ms. DJ discovered that her $120/month food subsidy had gone unused to the extent of a $370 credit.

Ms. DJ testified that she also learned when her mother was hospitalized that mother SN had not urinated in a week because of dehydration, and that she had not been given her thyroid medication for six months. But Ms. DJ introduced no admissible evidence of mother SN’s medical condition. The issue of the medications is in any event complicated, because of the restrictions placed on a home attendant’s authority to medicate a client. The medication agreement form that mother SN signed at the inception of the services states that she was aware that home attendants “do not administer medications. However, if medications are prepoured, they would assist the client by handing the container to the client at the appropriate hour.”

Mother SN was receiving on a monthly basis a Social Security benefit of $573, a pension payment of $74 and a food stamp subsidy of $120. At first, she maintained a joint bank account with Ms. DJ, but at some point, apparently at the bank’s suggestion, the account was changed or replaced by an account with Ms. SN. Mr. and Ms. SN apparently used some money that mother SN received on the death of a son to assist in the purchase of the two-family house in which they all lived. Ms. DJ acknowledged that she agreed to Ms. SN’s taking responsibility for mother SN’s financial matters, and mother SN apparently understood and agreed to the circumstances of her moving in with her son and daughter-in-law. The court does not understand Ms. DJ to be alleging any serious financial impropriety on the part of Mr. and Ms. SN. Rather, Ms. DJ suggested that the additional income caused Mr. and Ms. SN to keep mother SN with them, even though they were not able or willing to properly care for her.

Ms. DJ testified to bruising on mother SN’s upper arms, and Ms. SN-Watts said her brother had once told her mother SN had fallen when the home attendant was not present. However, all acknowledged that mother SN is a large woman with progressively limited mobility as her physical and medical condition deteriorated. It does not appear that any of the sisters suspected abuse or intentional mistreatment, and the court does not understand Ms. DJ to be alleging any. The court is satisfied, having seen and heard from Mr. and Ms. SN, that nothing like that occurred.

The three sisters testified that they spoke to Mr. and Ms. SN about the home attendant’s absences and their other concerns, but they were assured that there was no need for worry, and were discouraged from complaining because the Newtons were reluctant to look for another home attendant. Ms. DJ did call Rockaway twice, but, because of the Newtons’ urging, she only inquired about services and schedules, rather than making a complaint. Ms. Gordon also called Rockaway after the unpleasant Saturday incident.

As might be expected, much of the testimony of the three sisters or its significance was disputed by Mr. and Ms. SN and Rockaway. The Newtons dispute the sisters’ accounts of regular visits, and dispute their contention that visits were discouraged. To the contrary, the Newtons claim that they urged the sisters to visit more often, but that they received “limited cooperation” from the sisters. The Newtons also dispute that the sisters complained to them about the home attendant’s absence, contending that, in any event, the sisters would visit at times when the home attendant was not scheduled to be there. According to the Newtons, it was not until after mother SN was hospitalized, when the doctors questioned whether she had been receiving her medications, that anyone complained about the home attendant’s absence. The Newtons say that sister Linda even complimented them on mother SN’s care.

As for the home attendant, the Newtons considered her “not the best” but “pretty good.” Mr. SN acknowledged that he, too, had telephoned and not received a response, but noted that the home attendant did food shopping and ran errands as part of her duties. Both Mr. and Ms. SN stressed that, had the home attendant or Rockaway not performed, they would have taken action. They saw no sudden deterioration in mother SN’s condition, but rather the effects of a progressive debilitating illness over the four years mother SN was with them.

Mother SN could also be “stubborn” or “uncooperative” at times.

HM, Rockaway’s Executive Director since April 2000, testified on its behalf. Rockaway employs approximately 1,000 home attendants, and provides home care services under contract with New York City’s Human Resources Administration to approximately 200 Medicaid recipients. The home attendants receive 44 hours of training and are “supervised” by a nurse. Consistent with the medication agreement form, described above, Mr. HM stressed the home attendant’s limited involvement with the client’s medications. Mr. HM explained that the initial home attendant task assignment sheet for mother SN was prepared in accordance with HRA requirements after an in-home assessment by a registered nurse, but that HRA determined the level of service. Mr. HM also testified that there was a reevaluation and summary report by a nurse every six months, again in accordance with HRA requirements. However, the file that Rockaway introduced as mother SN’s complete file contains only one nurse’s supervisory visit report, detailing a visit on August 14, 2001. The report will be discussed below.

Mr. HM described a computerized time-tracking system for the home attendants, recording the time of telephone calls from the client’s premises when the home attendant arrives and departs. The time records for mother SN’s home attendant indicated no problems, but, of course, the system only provides assurance as to the home attendant’s presence at the starting and ending times. Mr. HM also testified that, until a December 2002 telephone call from Ms. DJ, Rockaway received no complaints about the home attendant’s absence during her scheduled hours or about the quality of her services.

Mother SN’s file also contains a client contact record that summarizes monthly “calls,” presumably by telephone, by a “personnel specialist” to the client’s premises. The form does not indicate to whom the caller spoke, but records whether or not the “client and/or family” is satisfied with the service and the home attendant. The client contact record from mother SN’s “complete” file shows monthly contacts from July 2000 through November 2001, during which the caller noted that the client was doing “well” or “fine” and was “happy” or “satisfied” with the home attendant. The client contact record is problematic, however, because there is evidence that one of the entries may have been falsified. The final entry is dated November 12, 2001, and indicates satisfaction with the home attendant and the service and that the “client and H/A doing fine.” But the file also contains a client update form that states that mother SN was hospitalized at Methodist on October 23, 2001 and that date was the last date of service to the client.

The medical opinions contained in the nurse’s supervisory visit report on the August 2001 visit are probably admissible as part of Rockaway’s business records. In any event, the report was introduced by Rockaway, and at the least would show notice to Rockaway of the information and opinions stated. The report’s general conclusion is that the “client needs assistance with all activities.” The report notes no “evidence” of, among other things, bedsores/skin lesions, poor nutrition, emaciation, or dehydration, and recommends a continuation of the current level of care.” The report is somewhat problematic in that it notes self-endangering behavior, but for “action taken and recommended follow up” states none at this time. The report also notes that the “client lives alone in apt on 2nd floor” and “needs the assistance of HA with all activities to ensure safety.” Nothing in the report indicates that any consideration was given to mother SN’s safety during the times when the home attendant was not present. The nurse indicated a next visit in November, but apparently mother SN was hospitalized before another visit.

In assessing whether Mr. and Ms. SN or Rockaway breached a duty of reasonable care, any alleged failure to properly medicate mother SN must be set aside. There is no direct evidence that mother SN did not in fact receive her medications, nor any admissible evidence that would support the inference that she was not properly medicated. The court must note, however, that, had there been such evidence, Rockaway’s reliance on the limited authority of home care attendants with respect to medications would not relieve it of all responsibility for the consequences. With awareness of an elderly person’s failure to take medication, whether as a result of stubbornness, forgetfulness, difficulty swallowing, lack of preparation by a relative, or any other reason, reasonable care would require some action, and no medical evidence or other expert evidence would be necessary for a factfinder to so conclude.

With respect to any alleged malnutrition or dehydration, again, there is no admissible evidence that mother SN suffered from these conditions. Moreover, as to Mr. and Ms. SN, there was no expert testimony that “physical manifestations of dehydration and undernutrition” would be “readily apparent.” Expert testimony would be even more crucial to any claim that the Newtons should have known that mother SN was not receiving her medications, absent direct evidence. Moreover, accepting the testimony of Ms. DJ and her sisters as to the frequency of their visits, if there were any “readily apparent” signs of malnutrition, dehydration, or failure to medicate, they, too, presumably would have seen them and they would have taken action.

Rockaway stands on different footing. Although the Newtons were “not in the class of individuals either possessing or under a legal obligation to procure” specialized medical knowledge, the same cannot as readily be said of Rockaway’s nurses or even its home attendants. An exploration of the issue must await a more appropriate case, one in which there is medical evidence that the condition existed, as well as a showing as to the regulatory requirements and limitations imposed on home care services.

As to the alleged absence of the home attendant during scheduled hours, neither medical nor other expert testimony is required when there is a “failure to provide that level of supervision called for in the treatment plan.” Based upon all of the evidence, the court concludes that there probably were occasions on which the home attendant was not present with mother SN when she should have been, although the court is not convinced that the Newtons understood that a problem existed. The real question, however, is harm. Unlike the cases in which a traumatic injury occurs during the home attendant’s absence, there is no link here between any one or combination of absences and any consequence to mother SN. Only the Saturday incident that Ms. Gordon testified about would qualify as evidence of discomfort or indignity. But, without mother SN’s testimony, it is difficult for the court to assess how she might have perceived the situation at that time, or generally when she was left alone.

Mother SN was apparently alone often, not only when the home attendant was absent during her scheduled hours, but also at those times when her attendant was not scheduled and the Newtons had yet to return from work. Considering all of the evidence, the court sees a serious question as to whether the Newtons and Rockaway “through the conduct of its employees,” including the home attendant, either failed to recognize that mother SN required a greater level of care, at home or elsewhere, or to take appropriate action in response.

In considering whether the Newtons or Rockaway breached a duty of reasonable care to mother SN in their assessment of an appropriate level and locus of care for mother SN, the factors to be weighed differ somewhat because of their respective roles. The policy concerns articulated by the Court of Appeals in deciding not to recognize a cause of action by a child against a parent for negligent supervision are, of course, most pertinent when the duty of the Newtons is at issue. Concerns about cultural differences, economic realities, family and other demands, and the elusive qualities of judgment are present here as well. These factors are particularly difficult to weigh by strangers when the choice might be between continued care at home and institutionalization.

Under Mental Hygiene Law § 81.22 (a) (9), a guardian is given the power to “choose the place of abode” of the incapacitated person, but “placement of the incapacitated person in a nursing home or residential care facility or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person.” That decision is made in the context of a “clear statutory mandate that the incapacitated person’s preferences, wishes and desires should be given great weight in light of the incapacitated person’s functional level, understanding and appreciation of her functional level.”

Moreover: “A guardian’s performance in money matters can be watched and evaluated in objective terms. This is not so in family matters. Only under careful judicial scrutiny should guardians be allowed to tamper with family relationships in the name of the ward’s best interest.” These onsiderations are highly significant when we do not have any evidence of the wishes of mother SN, and the question is raised in a civil action on her behalf against the son and daughter-in-law who watched over her, perhaps imperfectly, for four years of progressively debilitating illness.

Whether it is the Newtons’ or Rockaway’s conduct that is being evaluated, to the extent that the alleged breach of duty involves improper assessment of mother SN’s mental and physical condition, rather than “common sense and judgment,” expert testimony is required. Beyond that, particularly with respect to Rockaway, and subject to regulatory requirements, “the evaluation of the appropriate level of supervision implicates the professional standard of care and, as such, must be proven by expert testimony.” The issue is the “standard of care customarily exercised by similar facilities in the community.”

There is a “complex, multifaceted reality of providing personal care services to those in need,” and a “home care assessment requires complementary analyses and opinions from individuals with different fields of expertise.” In this case, the court has no information as to the availability or cost of additional care for mother SN in the home, the practical availability of financial resources in the family or through government subsidy, or the alternatives to home care and the practical and financial availability of those alternatives.

The most that can be said on this record, and in the exercise of “common sense and judgment,” is that the Newtons and Rockaway failed to see that mother SN might require additional care, and, therefore, failed to make a fuller assessment of her needs and the means for meeting them. For Rockaway in particular this is more than it should find satisfactory. But this court cannot know what an appropriate conclusion to such an assessment would have been, or what mother SN might have thought of it. The court is confident, however, without the assistance of expert testimony, that she would not have chosen the discomfort and indignity she suffered on occasion when she was left alone. Although a monetary award for such consequences might well be justified under the law, the novelty of the issues and factual uncertainties caution against it in this case.

Judgment is awarded to defendants, dismissing the claim against them.

If you know someone in a similar situation above, call Stephen Bilkis and Associates. Visit our offices located around New York for free legal consultation.

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