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

Title of bill

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

Purpose

To clarify the grounds for liability claims against nursing homes.

Summary of provisions

Amend 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 clarify 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.

Existing law

New bill.

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. However, 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 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." 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 visitors. 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 emotion 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.

Legislative history

This is a new bill.

Fiscal implications

None to the State.

Local fiscal implications

None.

Effective date

Immediately.