Firing a Healthcare Worker for Elder Abuse
Sometimes it's necessary to fire a caregiver aide for abuse of the elderly. It's important to know how to avoid retaliation and a lawsuit.
What's In This Article?
- Firing the Aides
- The Threats Start
- How Small Claims Court Mistreats the Elderly
- Importance of Power Of Attorney for Litigation
- Over a Year of Court Delays
- Elder Abuse in the Court System
This is a personal account of my experience firing my Aunt's eldercare aide. The purpose of this article is to give you some idea of what to expect and how to handle the consequences.
It started pretty innocently. I noticed that two of my Aunt's aides were increasing their purchases of staples and food.
I knew my Aunt couldn’t have been using so much. I realized that they must have been taking things home for themselves.
Firing the Aides
Things got out of hand when one day my Aunt complained that one of the girls was yelling at her and losing her temper. Therefore I decided that I needed to replace both of them.
After finding replacement aides through another local heath care agency, I fired both of them and paid them up-to-date including for the entire last day.
The Threats Start
Shortly after that one of them called my Aunt and threatened her. She told her “You are going to have a hell of a time.” I tried to report this as elder abuse to the local authorities but was told that nothing can be done unless she actually tried something.
Within a few weeks my Aunt received a registered letter from Small Claims Court with a subpoena to appear in court. I considered this frivolous but since it was legally registered through the courts it could not be written off as abuse.
The aide was suing for being fired and for missing wages. Well the fact of the matter is that New York law allows one to fire someone without cause as long as it is not for discrimination. But the missing wages suit needed to be resolved.
How Small Claims Court Mistreats the Elderly
By the way, she didn’t sue me. She sued my Aunt who was 97 at the time. At that age, and her frail condition, there was no way my Aunt would survive going to court.
If she is not here when we call her then she will be found guilty."— Court clerk's reply about elderly defendant.
Appearance in court by my Aunt was required by the New York Small Claims Court because my Power Of Attorney did not include litigation rights. That meant that I could not fight her case for her.
Okay, I can understand rules are rules. But the way the court clerk insisted that my Aunt had to appear in court was unacceptable and is a bad reflection on how New York State treats the elderly. When I told the clerk she was 97 she simply said "That doesn't matter. If she is not here when we call her then she will be found guilty."
Importance of Power Of Attorney for Litigation
I did my own research and found out all I had to do was get the proper POA showing that she gives permission for me to litigate on her behalf.
I ended up purchasing and downloading a Power Of Attorney Form from a legal form site that I found with a Google search. I had to bring my Aunt to the bank in her wheelchair to have the form signed and notarized in front of a bank notary.
Several lawyers told me to handle the case myself since they would end up having to charge me for waiting numerous times for trial, as I was about to discover.
Over a Year of Court Delays
Despite Elderly Defendant's Age of 97
So now I could litigate her case. It took seven visits to the court. Each time there was only one judge and hundreds of cases. So each time I was sent home again with another court date usually about two months later. This whole thing dragged on for well over a year.
If we used an arbitrator we could have had the case heard at once. But both parties have to agree to an arbitrator. The aide insisted on having a judge because she didn’t want to accept the fact that the decision of an arbitrator is final. So we kept going back every other month.
Elder Abuse in the Court System
Court is just waiting for old defendants to die.
By the seventh trip to the court I had reached my limit of frustration. Even though I was not dragging my Aunt in, I was still spending a lot of my own time with all the trips just waiting in the courtroom for the clerk to send us home again.
So this last time when the clerk once again said we had to come back, I yelled at her loud enough for everyone in the courtroom to hear...
"This is totally unacceptable to drag this on over a year for a defendant who is 98 years old!. This is elder abuse if I ever saw one!"
Yes she reached 98 by that time.
The clerk asked me to wait and she left the room. I suspected she went to talk to the Judge. When she came back, she said with a very determined voice, “The Judge will see you now.”
Finally I had my time in court for my Aunt.
The aide was suing for two things, for being fired and for missing wages. The Judge seemed angry that the first item was a lawsuit for being fired. That was discarded immediately.
Then the Judge asked her to explain her suit for missing wages. The aide really made a fool of herself. She explained how she overheard me talking to my Aunt over the phone about their pay. My aunt liked to use the speakerphone. So the aide was able to hear both sides of the conversation. She explained to the judge that I was just being cheap.
I was prepared to defend the missing wages suit to prove my case. I had a stack of banks statements three inches thick and presented this to the Judge. She never looked at it. I guess the thickness of it was enough for her, and the fact that I had it ready to show her was all she needed to see.
Needless to say, I won the case. But in a way the aide succeeded too. She accomplished what she wanted: To waste my time for so many visits to the court and to frustrate my Aunt in the process until the final outcome.
My Aunt died a few months later, but at least she knew we won so she could rest in peace.
© 2011 Glenn Stok
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