Can a Plaintiff seek home attendant care provided by family who is not a skilled nurse or home-care provider?

By Eric Ganci

In California (and many others states), if someone hurts you, you can make a claim for medical expenses in addition to general pain and suffering. This medical care may be direct emergency care at the hospital, but it may also be home attendant care.

This may raise a question: what if you cannot afford home medical care while your case is pending? Litigation can take years before a Jury decides a case, or before an Insurance company agrees to settle the case. During that time, what if you need home care but cannot afford it? And a more direct question: if your family is not a licensed home-care-giver yet provides you home medical care, may you claim that as part of your special, economic damages?

The answer is yes, and we have a case directly on-point in California: Hanif v. Housing Authority (1988), 200 Cal.App.3d 635.

In Hanif “plaintiff’s parents provided the following home attendant care: helping plaintiff get into and out of bed, helping him to and from the bathroom, changing his bandages, exercising his limbs, feeding him, administering prescribed medications, applying creams and lotions to his body, attending him while he was in pain (nighttime as well as daytime), assisting him in the use of a wheelchair, assisting him in learning to walk again, assisting him in the use of crutches, and generally acting as practical nurse.”

The Trial Court allowed this as evidence for Plaintiff’s damages: “The court found that 24–hour home attendant care was reasonably necessary and actually provided by plaintiff’s parents, that plaintiff’s parents had insufficient resources to hire a home nurse, that Medi–Cal disapproved home nursing care for plaintiff, and that the reasonable value of such home nursing care, could it have been obtained, was $8 per hour.”

Defense argues 2 things:

1. “the reasonable value of home attendant care provided by the plaintiff’s parents is an improper item of damages”; and
2. the $8/hour amount “awarded is excessive under the circumstances.”

The Court finds against Defense on both arguments.

The law:

Per Hanif: “It is established that ‘The reasonable value of nursing services required by the defendant’s tortious conduct may be recovered from the defendant even though the services were rendered by members of the injured person’s family and without an agreement or expectation of payment. Where services in the way of attendance and nursing are rendered by a member of the plaintiff’s family, the amount for which the defendant is liable is the amount for which reasonably competent nursing and attendance by others could have been obtained. The fact that the injured party had a legal right to the nursing services (as in the case of a spouse) does not, as a general rule, prevent recovery of their value….”