Battles within Families
The Faulks case involves contestation over professional medical care, much of which took place outside the patient’s home. It also involves competition between the claims of a foster son and those of the doctor that provided the care. What happens then when legal adversaries are members of the same family and when care occurs mainly within the household? Here care crosses the border from commercial to gratuitous, a difficult frontier for those seeking compensation, as courts ordinarily define any care rendered by family members as gratuitous.
In some cases, nevertheless, courts manipulate the boundary by defining care given by family members as sufficiently demanding and unexpected that it actually calls for compensation. In another variant, they examine whether the relations among kin were sufficiently distant to make the care given exceptional and therefore compensable (see Horsburgh 1992). Courts often do so by invoking the doctrine of implied contract, thus injecting legitimate commercial considerations into family transactions. Take for example, a 1985 Supreme Court of Minnesota decision, concerning Alice Ann Beecham’s claim to a portion of her mother-in-law’s $166,000 estate. The mother-in-law, Sara Edith Beecham, had cut Alice from the will in favor of her four grandchildren. Two years after marrying Edith’s son, Alice had taken the elderly, sick woman into her home. For the last six and a half years of Edith’s life, Alice cared for her full-time; not only cooking and cleaning but performing delicate nursing tasks. The court ruled that despite their family relation,
Alice Ann was entitled to a portion of the estate (In re Estate of Beecham, 378 N. W.2d 800 (Minn. 1985)).
When Alice had first contested the will, the trial court had ruled in her favor, finding an implied contract to pay for her personal services. The court noted that Edith had shown no reciprocity for Alice’s strenuous care—except for an occasional $5 or $10 “tip” for transportation expenses. An appeals court reversed that decision, on the grounds that Alice’s services, because they involved a family member, and in the absence of an oral or written contract, had to be gratuitous. The Supreme Court, however, reinstated the initial decision to award Alice compensation, supporting the trial’s court finding of an implied contract. Alice’s “around the clock care” of Edith, the Minnesota Supreme Court concluded, went “beyond services usually and ordinarily gratuitously rendered to family members” (804). In essence, the court declared Alice’s care thankless. Based on experts’ estimates of the commercial value of Alice’s home – care services, the court set the compensation at $32,000, at the lower end of the estimated range.
For all their fascinating complexities, legal disputes over undue influence and extraordinary care provided by family members do not serve our inquiry as limiting cases or curiosities. On the contrary, they shine floodlights on questions that always arise where caring crosses the law, but usually lurk in the shadows: Who has the right or obligation to provide what sort of care to whom? How much? With what compensation, if any? As they confront these questions, lawyers and judges negotiate placement of the relationships in question within larger arrays of possible relationships among the parties, match proper and improper forms and extents of care with those relationships, and draw conclusions concerning the sorts of compensation, if any, the parties deserve.
To be sure, lawyers and judges resort to the comforting legal language of intent when they can; they pounce on apparent revelations of intentions in the form of private letters, overheard conversations, and preambles to wills. But much of the reasoning that enters the legal record consists precisely of describing interpersonal transactions, sorting out those that qualify as care, assigning them to appropriate categories of relations evaluating their propriety or worth, then assigning rewards and obligations accordingly. Attorneys and dissenting judges regularly argue over each of these elements: transactions, care, relations, value, rewards, and obligations. This same sort of reasoning pervades legal disputes over caring relations but becomes especially visible with allegations of undue influence and family-provided care beyond the call of duty. Eyes sharpened, we can see the reasoning at work more clearly in a wide variety of other caring disputes: over expenditures for child care as tax-deductible business expenses, over alimony, over compensation for unpaid or underpaid personal care, over medical malpractice, over damaging release of confidential information, and much more. It even shows up, surprisingly, in legal disputes over the consequences of industrial accidents. Unlike most of the cases we have reviewed, industrial accidents regularly involve third parties who themselves are not providing personal care.
In 1913, Avonia and Andrew S. Griffen learned how complex such legal decisions can become (Griffen v. Cincinnati Realty Co., 27 Ohio Dec. 585 (Ohio Super. Ct. 1913)). After Andrew was injured at work, his wife Avonia, a seamstress, left her own job to nurse Andrew during a period of fifteen weeks. She then filed a suit against Andrew’s former employers on two grounds: for her lost wages as a direct consequence of Andrew’s injuries, and for loss of Andrew’s consortium as a result of his injured condition. The Superior Court of Cincinnati split its decision. On the one hand, it denied that the Workmen’s Compensation Act covered wives of employees who themselves could receive benefits under that act. It therefore turned down Avonia’s request for that compensation. It also insisted that her nursing of Andrew fell into the category of gratuitous family care and therefore did not qualify for the $120 compensation Avonia demanded. The court allowed that if Avonia and Andrew had written a contract for her services, or if they had hired an outside nurse, Andrew could have collected for the value of the nursing care.
When it came to question of consortium, on the other hand, the Superior Court made a surprising judgment for its time. As chapter 2 pointed out, until the mid-twentieth century, when a husband was injured, courts rarely allowed his wife to collect damages for the loss of his companionship and services. Yet the Cincinnati court, recognizing women’s increased legal entitlements, granted Avonia $500 for the loss of her husband’s consortium. The court rejected the claim for thankless care but accepted the claim for missing care. It manipulated the available legal categories to fulfill a sense of justice.