How to Sue a Home Health Care Agency for Neglect

To sue a home health care agency for neglect, you file a negligence claim against the agency itself. The claim covers the aide's conduct. It also covers the agency's own failures in hiring, training or supervising that aide. If the agency lacked a license your state required, that violation can be used as evidence. If your relative died, the case becomes a wrongful death claim and a survival claim, brought by the family or the estate.

Start by finding out who employed the aide. That can change who is liable.

Who You Can Sue When a Home Care Agency Fails

You can sue a home care agency for its aide's negligence and for the agency's own negligence in hiring, training, supervising or keeping that aide.

Vicarious liability, also called respondeat superior, makes an employer generally liable for an employee's negligence. The employee must have been acting within the scope of employment. Under this rule, the agency answers for what its aide did on the job.

Direct liability rests on the agency's own choices. An agency can be liable for negligent hiring, such as skipping a background check. The agency can also be liable for negligent training, negligent supervision, and negligent retention of an aide it knew or should have known was unfit.

Every negligence claim must prove four elements. There must be a duty of care, a breach of that duty, causation, and damages. Causation means the breach caused the harm.

How the caregiver was hired can change who is liable. A caregiver placed by a referral registry may count as an independent contractor rather than an employee. The rules on that question vary by state. An elder abuse lawyer can confirm how your state treats a registry-placed caregiver.

What Changes When the Agency Was Unlicensed

An agency's missing state license can be used as evidence of negligence in a lawsuit against that agency. Whether a license was required depends on the state.

Each state sets its own home care licensing rules. Some states license or register non-medical home care agencies and their aides. Other states do not license non-medical home care at all.

In many states, violating a safety statute meant to protect people like the victim can establish a breach of duty. The violation can also serve as evidence of a breach. This rule is called negligence per se. How much weight a licensing violation carries varies by state.

Three states show how licensing rules differ:

• California: The Home Care Services Consumer Protection Act (Cal. Health & Safety Code § 1796.10 and following) requires home care organizations to be licensed. It also requires their aides to be listed on the state's Home Care Aide Registry.
• Texas: The Health and Human Services Commission licenses Home and Community Support Services Agencies under Tex. Health & Safety Code ch. 142.
• Florida: The Agency for Health Care Administration licenses home health agencies and nurse registries under Fla. Stat. ch. 400, part III.

Operating without a required license violates state law. You can report an unlicensed operator to the state health or licensing agency. An unlicensed operator may also lack liability insurance, which can make collecting a judgment harder.

Home Care vs Home Health Claims

Home health means skilled care, such as nursing or therapy, usually ordered by a doctor. Home care, also called personal care, usually means non-medical help with bathing, meals, supervision and medication reminders. The difference can decide which legal rules govern a claim.

Medicare-certified home health agencies must meet federal Conditions of Participation in the Code of Federal Regulations at 42 C.F.R. Part 484. Non-medical home care agencies answer to state licensing rules, where a state has them.

Whether a claim is medical malpractice or ordinary negligence depends on state law. It also turns on whether the harm came from professional medical judgment by a licensed health care provider. A fall or missed supervision by a non-medical aide is often ordinary negligence. Nursing care or medication decisions by licensed staff may fall under malpractice rules.

The label changes the work a case needs. Almost every malpractice case needs a qualified medical expert on the standard of care and causation. Many states also add a pre-suit step. California requires 90 days' notice of intent to sue a health care provider (Cal. Code Civ. Proc. § 364). Texas requires an expert report within 120 days after each defendant's original answer is filed (Tex. Civ. Prac. & Rem. Code § 74.351).

Caps differ too. California's cap on noneconomic damages, changed by Assembly Bill 35 (AB 35), started in 2023 at $350,000 for injury cases and $500,000 for death cases. It rises each January until it reaches $750,000 and $1,000,000. The medical malpractice rights guide covers these rules in more detail.

Common Home Care Neglect Claims

Home care neglect is a caregiver's failure to provide food, water, hygiene, medication, supervision or medical care. Elder abuse is broader. It also covers physical, emotional and sexual abuse, abandonment, and financial exploitation.

Home care claims can involve these harms:

• Missed visits: a skipped shift that leaves the client without food, water or medication.
• Falls: unexplained falls or fractures.
• Bedsores and infections: pressure ulcers and untreated infections.
• Medication errors: these may fall under malpractice rules when licensed staff made the decision.
• Dehydration: dehydration, malnutrition or weight loss.
• Lack of supervision: leaving a client with dementia unsupervised.
• Poor hygiene: a client left unbathed or unclean.
• Abuse: physical, emotional or sexual abuse by an aide.
• Theft: a caregiver taking money or property, which is elder financial exploitation.

Nursing homes that take Medicare or Medicaid must meet separate federal requirements in 42 C.F.R. Part 483. If the harm happened in a nursing home, read about nursing home neglect lawsuits instead.

Steps to Sue a Home Health Care Agency

The steps to sue a home health care agency start with safety and reporting, then move to records, evidence and the filing deadline. Report early, because APS reports and licensing findings can become evidence later.

1. Get the person safe. If someone is in immediate danger, call 911.
2. Report to Adult Protective Services (APS). Every state has an APS program, usually run by county or state social services. The Eldercare Locator (1-800-677-1116), a service of the U.S. Administration for Community Living, connects callers to local agencies, including APS. Most states let you report without giving your name. See the steps for reporting elder abuse to APS.
3. Report licensing problems. Send licensing complaints to the state health or licensing agency.
4. Request the agency's records. Ask in writing for the care plan, visit or shift logs, medication records and incident reports. Also ask for the aide's training records and background check, which bear on negligent hiring and training claims.
5. Preserve evidence. Keep photos of injuries and living conditions, medical and hospital records, texts and emails, and the names of witnesses. Save copies of any APS report, police report, or state inspection or licensing findings.
6. Find the filing deadline. Deadlines for ordinary injury claims vary by state.

The filing deadline depends on the state and the type of claim. Malpractice deadlines differ from ordinary injury deadlines. California allows 3 years from the injury or 1 year from when the injury was or should have been discovered, whichever comes first (Cal. Code Civ. Proc. § 340.5). New York allows 2 years and 6 months under its Civil Practice Law and Rules (CPLR § 214-a).

If the defendant is a government body, a notice of claim may be due within months. A claim involving a federal employee requires an administrative claim within two years after the claim accrues, under the Federal Tort Claims Act.

The older adult can bring the claim personally. A court-appointed guardian or conservator, or an agent under a power of attorney, can bring it on that person's behalf. After a death, the estate's personal representative and the family bring the claims, subject to state law.

When Neglect Led to a Death

When home care neglect causes a death, two claims can follow: a wrongful death claim for the family and a survival action for the estate. Who files each one depends on state law.

A wrongful death claim is a civil lawsuit for a death caused by another party's negligence or wrongful act. It is separate from any criminal case. The claim can go forward whether or not anyone is charged. It uses a lower standard of proof, usually a preponderance of the evidence.

Some states have the estate's personal representative file for the family, as New York does under its Estates, Powers and Trusts Law (EPTL § 5-4.1). California lets the spouse or domestic partner, children, and others who would inherit under intestacy file directly (Cal. Code Civ. Proc. § 377.60). Texas allows the spouse, children and parents to file.

If none of those Texas relatives files within three months of the death, the executor or administrator may file (Tex. Civ. Prac. & Rem. Code § 71.004). The executor or administrator cannot file if all of them ask that no suit be brought.

A survival action is the deceased person's own claim, brought by the estate's personal representative. It covers losses before death, such as medical bills and lost wages between injury and death. In some states it also covers the person's pain and suffering. Survival money goes to the estate, where creditors can reach it, and passes under the will or intestacy. Wrongful death money goes to the family members the statute names. See survival actions and wrongful death claims compared.

Proving a wrongful death claim takes the four negligence elements plus proof that the conduct caused the death. Damages commonly include the financial support the person would have provided, household services, and medical and funeral costs. Many states also allow loss of companionship, care and guidance. New York limits recovery to economic losses (EPTL § 5-4.3).

California's Elder Abuse and Dependent Adult Civil Protection Act (Cal. Welf. & Inst. Code § 15600 and following) can add remedies for residents age 65 or older. The plaintiff must prove neglect by clear and convincing evidence and show recklessness, oppression, fraud or malice. If that is proved, the court awards reasonable attorney fees and costs. The usual limit on pain-and-suffering damages after a victim's death also does not apply. Florida lets a vulnerable adult who was abused, neglected or exploited sue for damages, with attorney fees available (Fla. Stat. § 415.1111).

Wrongful death deadlines run from the date of death in the states below.

These deadlines can change, and malpractice rules can shorten or change them when the death was caused by medical malpractice. Check the current rule in the wrongful death statute of limitations guide. If the death involved nursing or medication decisions by licensed staff, compare wrongful death and medical malpractice claims.

Getting a Lawyer for a Home Care Neglect Claim

Lawyers who handle elder abuse, wrongful death and malpractice cases usually work on a contingency fee. That means a percentage of the recovery, and no fee if there is no recovery. The percentage is set in a written fee agreement and is negotiable.

Case costs are separate from the fee. These include filing fees, medical records, expert witnesses and depositions. The agreement should say whether costs come out before or after the fee is figured, and whether you owe costs if the case is lost. Read more about how a contingency fee agreement works.

Some states cap fees. California caps malpractice contingency fees at 25% of a recovery settled before a lawsuit is filed and 33% after (Cal. Bus. & Prof. Code § 6146). Florida bar rules set standard maximums in injury and wrongful death cases. The cap is 33 1/3% of a recovery up to $1 million if the case settles before the defendant answers or the answer deadline passes. It rises to 40% of a recovery up to $1 million after that. For death cases, see wrongful death lawyer fees.

Pick the right kind of lawyer. An elder law attorney usually handles planning, such as wills, trusts, Medicaid eligibility, powers of attorney and guardianship. An elder abuse or nursing home abuse lawyer is a litigator who sues for damages. For a neglect lawsuit against an agency, look for the litigator. Some firms do both.

Ask each lawyer these questions before signing:

• How many home care or elder neglect cases have you handled?
• Who will work on my case day to day?
• What is your fee percentage, and how are costs handled?
• Will you file a lawsuit if the agency does not settle?
• How will you keep me updated?

You can describe what happened and get matched with a plaintiff-side attorney, free and with no obligation to hire.

Frequently Asked Questions

Can you sue a home care agency for neglect?

Yes, you can sue a home care agency for neglect. The agency is generally liable for an employee's negligence on the job. It can also be liable for its own negligent hiring, training, supervision or retention of an aide. A caregiver placed by a referral registry may be an independent contractor, which can change who is liable.

Is it worth suing for medical negligence?

Two things weigh on that decision: the proof required and any damage cap. Almost every malpractice case needs a qualified medical expert on the standard of care and causation. Some states cap noneconomic damages, such as Texas at $250,000 per claimant in health care liability claims against physicians. Malpractice lawyers usually work on contingency, so there is no fee without a recovery.

Can a home health agency refuse a patient?

Medicare-certified home health agencies must meet federal Conditions of Participation in 42 C.F.R. Part 484. States such as Florida also license home health agencies. Whether a refusal was allowed depends on those rules and on state law. Confirm it with the state licensing agency or a lawyer.

What if the home care agency was not licensed?

Operating without a required license violates state law, and you can report it to the state health or licensing agency. In many states, that violation can establish a breach of duty or serve as evidence of one. Some states do not license non-medical home care at all, so the first question is whether your state required a license. An unlicensed operator may also lack liability insurance, which can make collecting a judgment harder.

Is a home care aide's mistake medical malpractice?

It depends on state law and on whether the harm came from professional medical judgment by a licensed health care provider. Neglect by a non-medical aide, such as missed supervision or a fall, is often ordinary negligence. Nursing care or medication decisions by licensed staff may fall under malpractice rules, which can add expert requirements, caps and different deadlines.

What if my parent died because of home care neglect?

The estate's personal representative can bring a survival action, and the family can bring a wrongful death claim, subject to state law. Who may file the wrongful death claim varies by state. California, Texas and New York allow two years from the date of death, Massachusetts allows three, and Tennessee allows one. Confirm the current deadline in the wrongful death statute of limitations guide.