legalIn a move that could be a harbinger for similar legislative changes across the country, the bellwether state of New York recently amended portions of its Public Health Law (PHL) in a way that seems to invite more litigation against nursing home providers.
The statute governs the rights of patients to bring private actions against residential health care facilities when allegedly injured as a result of being deprived of any right or benefit established by contract or by state or federal statute, code, rule, or regulation.
Subdivision 1 of the statute was amended to define injury to include emotional and physical harm, financial loss, and death, while subdivision 4 was modified to ensure that the statutory remedies available are in addition to, among other things, the ability to bring tort causes of action against nursing home providers.
In addition, the statute was amended so that a violation of the specific rights set forth in PHL section 2803-c(3) is not a prerequisite for a statutory claim.
At a time when there is more interest in looking to alternative dispute resolution than lawsuits as a way of resolving disputes, these amendments unfortunately lead the way for more liability claims against nursing homes.

Remedies Are Cumulative

PHL section 2801-d(1) provides that a “residential health care facility that deprives any patient of any right or benefit…shall be liable to said patient for injuries suffered as a result of said deprivation.” The statute provides that “[a] ‘right or benefit’…[is]…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…federal statute, code, rule, or regulation.”

The statute also allows for all remedies to be “in addition to and cumulative with any other remedies available to a patient” that may exist in the courts or in any other state agency. “Rights,” according to section 2803-c of the PHL, include, but are not limited to, the following: not to have one’s civil and religious liberties infringed, to manage one’s own financial affairs, and to be fully informed of one’s medical condition and treatment.

Before the statute was amended, courts were divided as to whether claims were limited only to those rights set forth in PHL section 2803-c. For example, in Begandy v. Richardson, the trial court held that a patient could not bring suit based on a violation of the statute. In this case, the plaintiff alleged that the defendant’s failure to lock, label, or prevent access to a cellar stairway and to light the stairway violated the relevant building codes and portions of her admission agreement by failing to provide adequate care to prevent her from wandering.

But the appellate court disagreed with the plaintiff’s claim, having found that a statutory claim was limited to a deprivation of a “personal right or benefit contemplated by section 2803-c.”

Prior to the amendment, the courts had ruled in a variety of ways that had left the issue unresolved as to whether a plaintiff could assert both a PHL section 2801-d claim and a common law tort claim using the same set of facts.

The practical distinction between a common law tort claim and a claim under PHL section 2801-d is an important one. Among other things, as the burdens of proof vary, a plaintiff may succeed in one cause of action and not the other, as the common law and statutory claims are not duplicative. A patient’s attorney can thus win a tort claim but lose a statutory claim even though they arise out of the same facts.
In other words, a plaintiff can win on one cause of action and lose on the other cause of action, based on the same facts, because the burden of proof differs.

Definitions Broadened

The law was amended for the purpose of “clarify[ing] the grounds for liability claims against nursing homes.” Thus, subdivision 1 of section 2801-d was amended to clarify that “‘injury’ shall include…physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient.”

Subdivision 4, section 2801-d, which provided that statutory remedies were “in addition to and cumulative with” other remedies, also states that a violation of subdivision 3 of 2803-c “is not a prerequisite for a claim under this section.” Rather than merely “clarify” the statute, the legislature broadened access so that advocates can now assert: 1.) both personal injury claims and a PHL section 2801-c claim; 2.) a PHL section 2801-d claim that is not limited to the rights set forth in PHL section 2803-c; and 3.) claims under a broad definition of what constitutes a statutory injury.

Using the facts in the Begandy case as an example, the landscape has clearly changed. In Begandy, the court denied the plaintiff’s motion to amend his personal injury complaint based on violations of both the building code and certain provisions of the defendant’s admissions agreement, as it found that PHL section 2801-d claims were limited to the violation of PHL section 2803-c rights.
Post-amendment, however, such a plaintiff can now assert a claim that a facility violated the statute by failing to comply with the building code—the theory being that the plaintiff was deprived of a statutory “right or benefit” accorded to him.
A provider may now face a whole new category of claims that do not implicate the rights set forth in PHL section 2803-c. What’s more, there is no limitation on the type of injury that may be asserted by the plaintiff.

Defense Strategies

A provider has an absolute affirmative defense if it can prove that it “exercised all care reasonably necessary to prevent and limit the deprivation and injury.”

Does this mean that even if a provider violated a regulation that benefited a patient but thereafter exercised reasonable care to prevent injury to a patient, that the provider is not liable? What does the term “reasonably necessary” mean?

A facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, and that duty is based, in part, on the patient’s capacity to provide for his or her own safety.

However, there is a clear analogy between the affirmative defense raised under PHL section 2801-d and the defenses a provider raises when facing an ordinary negligence or a medical malpractice claim.

Accordingly, a provider should prepare a defense based on whether the statutory claim is based on a legal theory of medical malpractice or ordinary negligence. The distinction between the two turns on whether the acts and/or omissions at issue involve a medical matter that can only be assessed by medical professionals or whether the conduct and/or omission at issue can instead be assessed by using common knowledge and experience.

In other words, is the provider liable because it failed to exercise proper medical care and supervision (medical malpractice) or because it failed to exercise the care or supervision that a nonprofessional would use in the situation at issue (ordinary negligence)?

Recent Cases

Recent appellate cases have upheld dismissals of post-amendment PHL section 2801-d claims.
The Gold v. Park Avenue Extended Care Center Corp. case provides a good illustration of a claim dismissed at the trial level. A provider may also examine Butler v. Shorefront Jewish Geriatric Center for guidance.

In Gold, the plaintiff asserted both a section 2801-d violation and common law negligence.

The plaintiff alleged that, as a result of the defendant’s failure to install side rails on the decedent’s bed, and because of its failure to provide her with proper supervision, she sustained numerous falls that led her to suffer a stroke, dementia, and eventually death.

The provider, in support of its motion for summary judgment, submitted a doctor’s opinion establishing that: 1.) there were no supervision deficiencies given regarding the decedent’s health and status; 2.) the use of a restraint would have been inappropriate; and 3.) the absence of a restraint did not proximately cause any injury to the decedent because none of the falls were from the decedent’s bed.

The plaintiff, in opposition, only relied on a registered nurse’s affidavit. The court found no merit to her assertion that the federal regulation providing that each resident must receive care to maintain his highest physical, mental, and psychosocial well-being was violated and that the decedent was injured thereby. 
Andrew I. Bart is an attorney with Tenzer and Lunin, a New York City law firm. He may be reached at (212) 262-6699 or at