Attorney Notes & Strategic Insights — Non-Skilled Home Care

Non-skilled home care liability is typically driven by assumed duties and failed supervision, not by “medical negligence.” The strongest case theories focus on whether the agency created a care environment it failed to control—through unclear task boundaries, inadequate caregiver qualification, and poor documentation.

1. Case Framing & Theory of Liability

• Negligent supervision: agency failed to monitor, train, or correct caregiver performance.
• Scope-of-services breach: caregiver performed tasks outside authorized non-medical scope.
• Negligent hiring/retention: screening or competency controls were incomplete or absent.
• Contract / consumer protection angle: services promised were not delivered safely or as represented.
• Wrong-level-of-care theory: agency accepted a client whose needs exceeded non-skilled services.

2. High-Value Discovery Targets (Request Early)

• Service Agreement / Care Plan: authorized tasks, limits, escalation expectations, and signatures.
• Caregiver Personnel File: application, background checks, training certificates, competency validation.
• Supervision Evidence: supervisor check-ins, visit notes, performance reviews, corrective action plans.
• Scheduling / EVV Records: shift start/stop times, missed visits, substitutions, and location verification.
• Care Logs: task-specific documentation, observations, and communications with family/agency.
• Incident & Complaint File: reports, investigations, communications, and resolution documentation.
• Policies & SOPs: scope boundaries, medication assistance rules, fall response, escalation pathways.

3. Deposition Themes (Agency + Caregiver)

• Scope boundaries: what tasks were allowed, prohibited, and how caregivers were trained on limits.
• Escalation: when and how caregivers were required to notify agency/family/EMS.
• Supervision cadence: how often supervisors check in, what triggers increased oversight.
• Documentation discipline: how logs are completed, reviewed, corrected, and audited.
• Client acceptance: why the agency believed the client was appropriate for non-skilled care.

4. Regulatory / Enforcement Leverage

Many states maintain complaint pathways for home care agencies that produce valuable investigative records (surveys, findings, corrective actions). These materials can support negligent supervision theories and demonstrate notice of unsafe practices.

• Request any state complaint correspondence, investigative reports, or corrective action plans.
• Look for patterns of prior complaints involving the same caregiver or the same service failures.
• Use state requirements to evaluate whether the agency exceeded its permitted scope.

5. Causation & Timeline Strategy

• Build a timeline anchored to authorized tasks vs. tasks actually performed.
• Use EVV/schedule logs to confirm whether care was present at key timepoints.
• Identify missed escalation points (falls, confusion, refusal to eat/drink, medication concerns, wandering).
• Show how lack of supervision and documentation prevented early risk identification.