Driving is always a sticky issue with aging parents and family members. Mom or Dad’s refusal to acknowledge physical and mental limitations can put their lives at risk but if they get behind the wheel of a motor vehicle they can put others at risk. A recent New Jersey wrongful death lawsuit caught my eye. It’s a nightmare scenario for every family.
Saul was driving himself and his caregiver, Myra, to the diner. Myra got out of the car before Saul attempted to park. He stepped on the gas a little too hard and went up on the sidewalk, pinning Myra between the car and the wall. She lost her leg and then she died a short while later. Her family filed a personal injury and wrongful death lawsuit against Saul.
Both sides agreed that Saul was negligent in causing the accident and Myra’s injuries and subsequent death. However, the issue at trial was whether Myra was an employee or an independent contractor of Saul’s. If she was an employee, then her family could not sue Saul, but would be limited to a recovery in Workers’ Compensation court, which has a cap on monetary damages. A civil lawsuit has no such limitation.
Most people who hire aides directly, rather than going through an agency, pay the aides by cash or check, with no paperwork as to the scope of the work and the dates and times performed. The aide usually doesn’t report the payment as income and pay any taxes. Likewise, the senior doesn’t pay any payroll taxes or maintain workers compensation insurance but treats the aide as an independent contractor.
I have written about the dangers that lack of documentation causes for Medicaid purposes. In this case, the attorney for Myra’s family argued that no payroll taxes or contract meant Saul was not her employer. A written contract is always a good idea, so I am not convinced the lack of one indicates the type of relationship that existed.
Saul’s attorney, however, had a tough argument to make in favor of an employee/employer relationship. Although not clear from the newspaper accounts of the case, in all likelihood Saul didn’t carry workers compensation insurance. He paid Myrna $100 a day, probably cash, to keep cost down. In my experience, I have yet to run across someone who hired an aide and purchased the insurance.
In the end, the jury sided with Myrna’s family and awarded $525,000. It is unclear how much of that was covered by Saul’s automobile insurance company and how much he will have to pay out of his pocket. You might think his problems stem from the choice his family made in not treating Myrna as an employee and paying the taxes and insurance.
But, the bigger mistake is in allowing Saul to get behind the wheel. Not an easy issue for families to tackle but a necessary one that could have life and death consequences, as it did for Saul and Myrna.