Provides clarification on the private right of action by a patient of a residential health care facility

BILL NUMBER:A763

Title of bill

An act to amend the public health law, in relation to private rights of action by patients in residential health care facili- ties

Purpose or general idea of bill

To clarify the grounds for liability claims against nursing homes.

Summary of specific provisions

Amends subdivision (1) and (4) of section 2801-d of the Public Health Law to specify that liable "injury" includes physical, emotional, and financial harm as well as death of a patient, and clarifies that such liability is not limited to claims for violations of section 2803-c (rights of patients in certain medical facilities), which related primarily to religion, privacy, consent and visitation.

Justification

Following the 1975 massive scandal of fraud and abuse in nursing homes, Public Health Law §2801-d was enacted to give patients increased powers to enforce their right to adequate treatment and care by providing them the right to sue for damages and other relief. Howev- er, the experience of claimants alleging injury caused by facilities has been varied and uneven.

Subdivision 4 of section 2801-d permits a nursing home patient to sue for injuries by the nursing home, and further specifies that "the reme- dies 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 admin- istrative proceedings." Despite this simple and direct language, patients and their representative have experienced barriers to bringing suits under this section of law.

Some courts have erroneously said that the section only applies to suing for violations of a specific Public Health Law § 2803-c relating to religion, privacy, consent, physical and chemical restraints and visi- tors. See, e.g., Begandy v. Richardson, 510 N.Y.S. 2d 984. Other courts have been open to additional causes not enumerated in §2803-c. See, e.g., Zeides v. Hebrew Home for the Aged, 753 N.Y.S.2d 450. This bill would make it clear that the statute means what it says - that the right to sue applies to any injury to the patient by the nursing home.

This bill will also establish in plain language that the right to sue extends to injuries against physical and emotional health, financial injury as well as death, and that a violation of section 2803-c is not a prerequisite for claim under section 2801-d.

Prior legislative history

2007-08: A.8218-B - passed Assembly

Fiscal implications

None to the state

Effective date

Immediately