SUMMARY OF CAUSES OF ACTION PURSUANT TO PUBLIC HEALTH LAW § 2801-d

Public Health Law § 2801-d provides a private statutory cause of action for residents of nursing homes injured as a result of the nursing home’s deprivation of certain “resident’s rights.” It is a separate and distinct cause of action and may be plead “in addition to and cumulative with other remedies available to the plaintiff at law,” such as medical malpractice, negligence or wrongful death. It provides in relevant part:

Any residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said deprivation, except as hereinafter provided.

For purposes of this section, a ‘right or benefit’ of a patient of a residential health care facility shall mean any right created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation … .

P.H.L. § 2801-d (italics added). Residential health care facilities are subject to punitive damages. On this element of damages, Public Health Law § 2801-d(2) provides:

[W]here the deprivation of any such right or benefit is found to have been willful or in reckless disregard of the lawful rights of the patient, punitive damages may be assessed .... P.H.L. § 2801-d(2) (italics added).

In this regard, within the past few years, a Kings County jury awarded the estate of a 76-year-old nursing home patient $18.75 million, including $3.75 million in compensatory damages, and $15 million in punitive damages relating to Public Health Law violations at the defendant nursing facility. See Whitehurst v. Brooklyn-Queens Nursing Home, Inc., Supreme Court, Kings County (Index. No. 40307/04).

Further, “the remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings.” P.H.L. § 2801-d(4). Finally, “any party to an action brought under this section shall be entitled to a trial by jury,” which can never be waived, P.H.L. § 2801-d(8), and the court has discretion to award attorney’s fees if judgment in an action under this section is rendered in favor of the plaintiff. P.H.L. § 2801-d(6).

The First, Second and Fourth Departments of the Appellate Division, as well as many trial courts in New York State, have issued written decisions recognizing the viability of a statutory cause of action pursuant to Public Health Law § 2801-d. See e.g. Ward v. Eastchester Health Care Center, LLC, 34 A.D.3d 247, 248 (1st Dept. 2006) (“Public Health Law § 2801-d … authorizes a private right of action for the violation of rights enumerated in § 2803-c”); Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 A.D.2d 178, 180 (1st Dept. 2002) (recognizing a viable cause of action under Public Health Law § 2801-d, and “the remedy for which is ‘in addition to and cumulative with any other remedies available to a patient’.)”; Sullivan v. Our Lady of Consolation Geriatric Care Center, 60 A.D.3d 663, 875 N.Y.S.2d 116 (2nd Dept. 2009) (“Such a cause of action [for negligence] is separate and distinct from, and involves considerations different from, a cause of action to recover damages for deprivation of rights pursuant to Public Health Law § 2801-d”); Doe v. Westfall Health Care Center, Inc., 303 A.D.2d 102 (4th Dept. 2002) (recognizing a private right of action under the statute); Passet v. Menorah Nursing Home, Inc., 16 Misc.3d 1117, (Sup. Ct., Kings County, Knipel, J. 2007) (ruling “in the absence of an explicit precedent from the Appellate Division, Second Department, this court finds persuasive those cases allowing a Public Health Law cause of action even where it is cumulative with a common law action for negligence”); Pasqua v. Bon Secours New York Health System, 13 Misc.3d 1036 (Sup. Ct., Bronx County, Renwick, J., 2006) (reviewing the development of case law on Public Health Law claims and holding that plaintiff has a cause of action under PHL § 2801-d for injuries caused by a deprivation of any right or benefit established for that patient’s well-being); Morisette v. Terence Cardinal Cooke Health Care Center, 8 Misc.3d 506 (Sup. Ct. N.Y. County, Sklar, J., 2005) (after an exhaustive review of the statute’s legislative history, ruling that Public Health Law § 2801-d was enacted to create “an additional avenue of relief to the vulnerable nursing home population” and that it is not duplicative of a patient’s right to maintain a simultaneous cause of action for medical malpractice.)

To be sure, on June 9, 2009, the New York State Legislature amended and expanded Public Health Law § 2801-d to confirm the availability of a distinct separate cause of action under the statute, specifically providing that:

The remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings, including tort causes of action, and may be granted regardless of whether such other remedies are available or are sought.

The statute was further amended to specify that injuries under this section include, but are not limited to:

... physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient.

In so doing, the New York State Assembly admonished courts that have provided barriers to bringing suits under this section of the law, and clarified that:

This bill would make it clear that the statute means what it says - that the right to sue applied to any injury to the patient by the nursing home.

There are a number of state and federal statutes, codes, rules and regulations that were established for the well-being of the nursing home resident, and which form the basis for the statutory cause of action contemplated by Public Health Law § 2801-d. See e.g. P.H.L. § 2803-c (state law outlining “rights of patients” in nursing homes); N.Y. Comp. Codes R. & Regs. § 415 et seq (state regulation outlining a code of minimum standards for nursing homes requiring that administrators and staff conform to fundamental principles of individual rights and accepted professional standards in all aspects of nursing home resident care); 42 C.F.R. § 483.1 et seq (federal regulations outlining minimum standards for nursing homes addressing all aspects of nursing home resident care including quality of life, quality of care, nursing, physician, dietary and other necessary services).

By way of example, Public Health Law § 2801-d provides that a nursing home shall be liable for injuries suffered as a result of the deprivation of any one of the following rights or benefits as follows:

▪ Every patient shall have the right to receive adequate and appropriate medical care … P.H.L. § 2803-c(3)(e);

▪ Every patient shall be free from mental and physical abuse and from physical and chemical restraints … P.H.L. § 2803-c(3)(h);

▪ The facility must make every reasonable effort to prevent pressure sores from developing, and with respect to residents having a pressure sore on admission, the nursing home must provide necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. 10 NYCRR 415.12(c)(1) & 42 C.F.R. § 483.25(c) See also Washington v. Asfaw, 15 Misc.3d 1107, 5 (Sup. Ct. N.Y. County, Bransten, J., 2007) (where Justice Bransten states the “case law is clear; a plaintiff may seek relief pursuant to the Public Health Law [§ 2801-d] for violations of 10 NYCRR 415.12” regarding a nursing home’s obligation to prevent the development of pressure ulcers);

▪ The facility must ensure the resident maintains acceptable parameters of nutritional status. 10 NYCRR 415.12(i)(1) & 42 C.F.R. § 483.25(i);

▪ The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health. 10 NYCRR 415.12(j) & 42 C.F.R. § 483.25(j);

▪ The facility must ensure a resident’s abilities in activities of daily living do not diminish, including the resident’s ability to bathe, dress, groom, transfer, ambulate, toilet, eat and use speech. 10 NYCRR 415.12(a)(1) & 42 C.F.R. § 483.25(a)(1);

▪ The facility must ensure a resident does not experience reduction in range of motion, and if the resident has limited range of motion the resident receives appropriate treatment and services to increase range of motion and prevent further decrease in range of motion. 10 NYCRR 415.12(a)(1) & 42 C.F.R. § 483.25(a)(1);

▪ The facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. 10 NYCRR 415.12 & 42 C.F.R. § 483.25;

▪ The facility must have sufficient nursing staff to provide the nursing and related services referenced in the above list. 10 NYCRR 415.13 & 42 C.F.R. § 483.30.

Finally, the Public Health Law and New York regulations applicable to nursing homes recognize that mismanagement of a nursing home and insufficient nursing staff can result in a nursing home’s inability to provide residents with the services required above, resulting in resident neglect and serious physical injury or death. Section 415. 26 of the Compilation of Codes Rules and Regulations of the State of New York requires “a nursing home [to be] administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.” 10 NYCRR 415.26 (italics added).

Further, Public Health Law § 2808-a provides that certain persons in control of the management and implementation of policies of a nursing home, can be held personally liable. Controlling persons are defined as follows:

“any person who by reason of a direct or indirect ownership interest has the ability, acting either alone or in concert with others with ownership interests, to direct or cause the direction of the management or policies of said facility.

PHL § 2808-a (italics added). See also Niagara Mohawk v. Salerno, 20 A.D.3d 142 (4th Dept. 2005) (conducting review of legislative history of section and finding it “makes clear that liability of a controlling person was intended to be the same as that of the residential health care facility under Public Health Law article 28”).