Advancing Attendant Care Claims

A refresher on the law and strategies can be helpful. In particular, for areas such as attendant care claims, which have the potential to generate significant damage awards.

Typically, a significant portion of future care costs come from the plaintiff's attendant care needs, that is, assistance with activities of daily living that the person would be able to complete without injury. In some cases, it can be hundreds of thousands of dollars annually. For this reason, it is incredibly important to have a solid grasp on this area of the law. I hope to provide some insights, tips, and tricks for advancing attendant care claims.

Institutional vs. Community Professionals vs. Family Care

A plaintiff and/or their family members should be fully compensated for the care they will require. This means that they are entitled to the market cost of purchasing the care they will need for life even if family members are currently providing attendant care and not spending money out of pocket. If possible, care in a community-based model (i.e., from home vs. an institution) is preferred, even if the cost may be more.

Courts have found it reasonable for a person to want to live in a home of his or her own.1 If an injured person requires attendant care, (s)he is entitled to full compensation regardless of whether the services will be provided by a professional or by a family member. The Supreme Court has been clear that “a wrongdoer cannot benefit of services donated to the injured party.”2 In Crawford v. Penny3 the court found that it would be unreasonable to impose obligations of care on the plaintiff's family. “While I have no doubt whatsoever that her family will continue to participate in Melissa's care and provide companionship to her, Melissa is nevertheless entitled to 24 hour care supervision from others.”

Justice Spiegal, in Matthews Estate v. Hamilton Civic Hospitals4, 2008 CanLII 52312 (ON SC), held that “[i]t is the nature and quality of the services provided and their value to the person injured rather than professional qualifications of the care provider that should govern the assessment.” Again in Sandhu et al. v. Wellington Place Apartments et al.5 the court found that market rates were allowed as claimed at the full agency rates for the level of service.

Developing the Future Care Plan & Proving the Need

A key element of developing the future care plan is input from the team supporting the client, including doctors, occupational therapists...