Nursing Home Litigation and Residents' Rights Statutes

New York enacted its own statute in 1996, conferring a private right of action on nursing home patients for injuries they sustain as a result of the deprivation of specified rights. Public Health Law 2801-d. New York plaintiffs now found that a cause of action brought pursuant to PHL ' 2801-d for injuries sustained as the result of the deprivation of specified rights was governed by the 3-year limitations period for an action to recover upon a liability, not by the 2.5-year period for medical malpractice actions. Zeides v. Hebrew Home for the Aged at Riverdale Inc., 300 AD2d 178, 753 NYS2d 450 (1st Dep't 2002).

The statute provides in pertinent part:

1. 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 or benefit 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, where noncompliance by said facility with such statute, code, rule or regulation has not been expressly authorized by the appropriate governmental authority. No person who pleads and proves, as an affirmative defense, that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted shall be liable under this section.

2. Upon a finding that a patient has been deprived of a right or benefit and that said patient has been injured as a result of said deprivation, and unless there is a finding that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient, compensatory damages shall be assessed in an amount sufficient to compensate such patient for such injury, but in no event less than [25%] of the daily per-patient rate of payment established for the residential health care facility under section twenty-eight hundred seven of this article or, in the case of a residential health care facility not having such an established rate, the average daily total charges per patient for said facility, for each day that such injury exists. In addition, where 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.

Such remedies “are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by a administrative proceedings,” according to PHL ' 2801-d (4).

How the Law Is Applied

PHL ' 2801-d has recently emerged in numerous decisions recognizing a statutory right of action under which individual residents of long-term care facilities can bring suit. Relying on PHL ' 2801-d, the Appellate Division, Fourth Department in Doe v. Westfall Health Care Center Inc., 303 AD2d 102, 755 NYS2d 769 (4th Dep't 2002), held that a rape victim had a cause of action under the statute governing private actions by patients in residential health care facilities. The court there stated, “[W]e conclude that the clear intent of ' 2801-d was to expand the existing remedies for conduct that, although constituting grievous and actionable violations of important rights, did not give rise to damages of sufficient monetary value to justify litigation.”

Recently, in Morisett v. Terence Cardinal Cooke Health Care Ctr., (2005 NY Slip Op 25158), the Supreme Court, New York County, followed Doe v. Westfall Health Care Center and held that plaintiff's complaint stated a cause of action under Public Health Law ' 2801-d. In Morisett, the deceased, a nursing home resident, allegedly died due to asphyxiation from buildup of mucus secretions, something she was prone to and that could allegedly have been prevented with proper care. Plaintiff administratrix of the deceased's estate asserted claims for wrongful death premised on negligence and malpractice and also sought relief under PHL ' 2801-d. Defendants moved to dismiss plaintiff's PHL ' 2801-d claim.

The Morisett court noted that when Hugh Carey became Governor in 1975, one of his primary goals was to reinvigorate “the public's confidence in the State's ability to protect it most defenseless citizens, the aged and infirm,” which had been destroyed by a series of dramatic disclosures highlighting the abuses of nursing home care in their State. See Governor's Memoranda, Nursing Home Operations, McKinney's 1975 Session Laws of New York, p 1764. The Governor took several steps to attain this goal, including appointing a Commission to investigate the statewide nursing home system and recommend laws to improve it. PHL ' 2801-d came out of this process. The Governor's Commission noted that this statute “introduces a degree of equality between nursing homes and their otherwise vulnerable and helpless patients and, through private litigation brought by patients either in individual or class action lawsuit, provides a supplemental mechanism for the enforcement of existing standards of care.” The Commission's summary further observed that most nursing home patients are devoid of the financial resources to bring a lawsuit and that PHL ' 2801-d therefore provides incentives “for the private bar to handle meritorious suits,” such as the law's provisions for minimum compensatory damages, punitive damages where the facility's actions are willful or reckless, and enabling the court to award successful litigants reasonable attorneys' fees.

After reviewing this and other legislative history and case law, the Morisett court found that plaintiff's complaint could state a cause of action under PHL ' 2801-d despite the availability of a common law remedy because the legislative history of the law evinced an intent to provide an additional avenue of relief to the vulnerable nursing home population in order to insure that their rights were enforced.

Statutory Claims Not Available to All Plaintiffs?

The courts are not all in agreement on the issue of whether both a common law and statutory basis for suit will lie in a single case. The Appellate Division, Fourth Department, in Goldberg v. Plaza Nursing Home Comp., 222 AD2d 1082, 635 NYS2d 841 (4th Dep't 1995), found that it did not. The allegations in Goldberg were these: A nursing home patient was placed in restraints while napping, but when she awoke, her requests to have the restraints removed were ignored. Struggling to free herself, she died either because she strangled herself or had a heart attack. The defendant moved for but was denied summary judgment as to the claim based on PHL ' 2801-d. The appellate division held that summary judgment should have been granted because the record established that the statutory claim was predicated on defendant's negligence. The appellate court, looking to various memoranda that accompanied the enactment of the statute, found that the legislature's intent was to provide a remedy to patients in residential health care facilities who are denied certain enumerated rights and benefits; the purpose was not to create a new personal injury cause of action based on negligence when that remedy already existed. The Goldberg plaintiff possessed the right to bring a wrongful death action predicated on defendant's negligence, notwithstanding the enactment of PHL ' 2801-d. Thus, the court concluded that to give that section the interpretation urged by plaintiff would authorize a cause of action under that statute for every case based upon negligence and implicating a residential health care facility – something the court found the legislature did not intend.

In Bielewicz v. Maplewood Nursing Home, 4 Misc 3d 475, 778 NYS2d 666 (NY Sup 2004), the court was faced with a plaintiff's motion for leave to amend to add a claim for deprivation of patient rights under PHL ' 2801-d. Defendants relied on Goldberg to oppose the motion, asserting that the statute did not create a new personal injury cause of action because a common law remedy already existed. The Bielewicz court agreed with defendants, noting that the holding in Doe v. Westfall Health Care Center stood not for the proposition that plaintiffs could pursue both statutory and common-law remedies, but that the statutory remedy might be available to a plaintiff if no common-law remedy existed. (As the Fourth Department pointed out in Doe v. Westfall Health Care Center, given the facts presented there, there could be no action against the nursing home under theories of either respondeat superior or strict liability; nor was there a reasonable likelihood that the nursing home could be held liable on a theory of negligent hiring or negligent supervision of an employee.) “The present case, which involves a patient left unattended who drove his wheelchair into a location where he fell, presents a claim of negligent supervision of a patient, a well-recognized category of negligence,” said the Bielewicz court. “There is no difficulty with the plaintiffs' proof or any bar to recovery, if negligence is found, under standard common law principles, nor any problem of damages. The Fourth Department did not overrule Goldberg in its later case (Doe v. Westfall Health Care Center), and under the facts of the present case it is the Goldberg precedent that this court must follow.” The motion to amend the complaint was therefore denied.

Similarly, in Acevedo v. Augustana Lutheran Home, 2004 NY Slip Op 51867U (Sup. Ct., Kings Cty.) (9/24/04), the Supreme Court, Kings County, denied plaintiff's motion seeking leave to amend the complaint to assert claims for deprivation of statutory rights and benefits under Public Health Law ' 2801-d. The court followed the rationale of Bielewicz and found that the plaintiff had an adequate remedy under traditional negligence and malpractice theories. Accordingly, the court held that it would not create a new personal injury cause of action when a remedy already existed.

What Other States Are Doing

Several jurisdictions beside New York have enacted statutes regulating nursing home conditions and treatment of patients. These statutes, commonly known as “nursing home bills of rights,” grant specific rights to nursing home patients and typically provide a private right of action against the home for violation of these enumerated rights. See, e.g., Mass Gen Laws Ann ch 111 ' 70 e; Mo Rev Stat ' 198.003 et seq.; NJ Rev Stat ' 30.13; NC Gen Statutes '131E; Ohio Revised Code ' 3721.17 (I); W Va Code ' 16-5C-15c. These statutes provide that a private plaintiff may obtain both damages and injunctive relief for violation of the specified rights. Recovery of punitive damages and attorneys' fees, neither of which is generally available in a parallel common-law negligence, contract, or wrongful death actions, may also be allowed. See Hoffman and Schreier, “A Private Right of Action Under Missouri's Omnibus Nursing Home Act,” 24 St Louis ULJ 661 (1981).

It appears that although it may be possible in other jurisdictions to join a claim under such a statute with another claim for mistreatment of a patient where the injuries for which recovery is sought under each claim are distinct, double recovery for the same injuries will not be permitted, either in the same or in a subsequent action. For example, in Stiffelman v. Abrams, 655 SW2d 522 (Mo 1983), in which recovery was sought for personal injuries to a patient that resulted in his death, the plaintiffs asserted both a breach of contract claim based on provisions of an admission agreement and a claim under the “bill of rights” provisions of the Missouri Omnibus Nursing Home Act (Mo Rev Stat '' 198.003, et seq). Although the court held that the contract claim for the death of the patient was precluded by the state wrongful death act, it held that the statutory claim was not so precluded based on consideration of the legislative history of the Omnibus Act. Nonetheless, the court noted that since the state wrongful death act included a right to recovery for the decedent's pain and suffering, and the plaintiff had sought recovery for such injuries under the Omnibus Act, the general rule against double recovery would preclude recovery for the later wrongful death action.

Conclusion

By enacting nursing home residents' rights statutes, New York and other state legislatures have conferred private rights of action on patients in nursing homes for injuries sustained as a result of the deprivation of specified rights. However, the courts have not unanimously recognized this cause of action, finding instead that statutorily conferred rights apply only when traditional common-law remedies are unavailable. While future case law will surely clarify this point, this is an issue that counsel should be aware of in prosecuting or defending such actions.

In the recent past, nursing home residents had difficulty in recovering money damages against those facilities. In 1989, Congress enacted its Omnibus Budget Reconciliation Act of 1987, which was a major attempt at reform in the federal regulation of nursing homes. This initiative was intended to dramatically improve the health and safety of nursing home residents through extensive regulations, including the “Residents Bill of Rights,” new care standards and new enforcement mechanisms. See 42 U.S.C. '' 1395, 1396 (2000).

Mirroring the federal statute, many states have created a statutory right of action under which individual residents of long-term care facilities may bring suit. The purpose of these new statutes is to encourage increased compliance with existing statutory standards of care through private legal action. As a result, a cause of action based on a violation of statutory rights has become popular with the plaintiff's bar. The question is, are such statutorily created causes of action the boon many plaintiffs believe them to be?

One State's Experience: New York's Nursing Home Statute

New York enacted its own statute in 1996, conferring a private right of action on nursing home patients for injuries they sustain as a result of the deprivation of specified rights. Public Health Law 2801-d. New York plaintiffs now found that a cause of action brought pursuant to PHL ' 2801-d for injuries sustained as the result of the deprivation of specified rights was governed by the 3-year limitations period for an action to recover upon a liability, not by the 2.5-year period for medical malpractice actions. Zeides v. Hebrew Home for the Aged at Riverdale Inc. , 300 AD2d 178, 753 NYS2d 450 (1st Dep't 2002).

The statute provides in pertinent part:

1. 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 or benefit 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, where noncompliance by said facility with such statute, code, rule or regulation has not been expressly authorized by the appropriate governmental authority. No person who pleads and proves, as an affirmative defense, that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted shall be liable under this section.

2. Upon a finding that a patient has been deprived of a right or benefit and that said patient has been injured as a result of said deprivation, and unless there is a finding that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient, compensatory damages shall be assessed in an amount sufficient to compensate such patient for such injury, but in no event less than [25%] of the daily per-patient rate of payment established for the residential health care facility under section twenty-eight hundred seven of this article or, in the case of a residential health care facility not having such an established rate, the average daily total charges per patient for said facility, for each day that such injury exists. In addition, where 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.

Such remedies “are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by a administrative proceedings,” according to PHL ' 2801-d (4).

How the Law Is Applied

PHL ' 2801-d has recently emerged in numerous decisions recognizing a statutory right of action under which individual residents of long-term care facilities can bring suit. Relying on PHL ' 2801-d, the Appellate Division, Fourth Department in Doe v. Westfall Health Care Center Inc. , 303 AD2d 102, 755 NYS2d 769 (4th Dep't 2002), held that a rape victim had a cause of action under the statute governing private actions by patients in residential health care facilities. The court there stated, “[W]e conclude that the clear intent of ' 2801-d was to expand the existing remedies for conduct that, although constituting grievous and actionable violations of important rights, did not give rise to damages of sufficient monetary value to justify litigation.”

Recently, in Morisett v. Terence Cardinal Cooke Health Care Ctr., (2005 NY Slip Op 25158), the Supreme Court, New York County, followed Doe v. Westfall Health Care Center and held that plaintiff's complaint stated a cause of action under Public Health Law ' 2801-d. In Morisett, the deceased, a nursing home resident, allegedly died due to asphyxiation from buildup of mucus secretions, something she was prone to and that could allegedly have been prevented with proper care. Plaintiff administratrix of the deceased's estate asserted claims for wrongful death premised on negligence and malpractice and also sought relief under PHL ' 2801-d. Defendants moved to dismiss plaintiff's PHL ' 2801-d claim.

The Morisett court noted that when Hugh Carey became Governor in 1975, one of his primary goals was to reinvigorate “the public's confidence in the State's ability to protect it most defenseless citizens, the aged and infirm,” which had been destroyed by a series of dramatic disclosures highlighting the abuses of nursing home care in their State. See Governor's Memoranda, Nursing Home Operations, McKinney's 1975 Session Laws of New York, p 1764. The Governor took several steps to attain this goal, including appointing a Commission to investigate the statewide nursing home system and recommend laws to improve it. PHL ' 2801-d came out of this process. The Governor's Commission noted that this statute “introduces a degree of equality between nursing homes and their otherwise vulnerable and helpless patients and, through private litigation brought by patients either in individual or class action lawsuit, provides a supplemental mechanism for the enforcement of existing standards of care.” The Commission's summary further observed that most nursing home patients are devoid of the financial resources to bring a lawsuit and that PHL ' 2801-d therefore provides incentives “for the private bar to handle meritorious suits,” such as the law's provisions for minimum compensatory damages, punitive damages where the facility's actions are willful or reckless, and enabling the court to award successful litigants reasonable attorneys' fees.

After reviewing this and other legislative history and case law, the Morisett court found that plaintiff's complaint could state a cause of action under PHL ' 2801-d despite the availability of a common law remedy because the legislative history of the law evinced an intent to provide an additional avenue of relief to the vulnerable nursing home population in order to insure that their rights were enforced.

Statutory Claims Not Available to All Plaintiffs?

The courts are not all in agreement on the issue of whether both a common law and statutory basis for suit will lie in a single case. The Appellate Division, Fourth Department, in Goldberg v. Plaza Nursing Home Comp. , 222 AD2d 1082, 635 NYS2d 841 (4th Dep't 1995), found that it did not. The allegations in Goldberg were these: A nursing home patient was placed in restraints while napping, but when she awoke, her requests to have the restraints removed were ignored. Struggling to free herself, she died either because she strangled herself or had a heart attack. The defendant moved for but was denied summary judgment as to the claim based on PHL ' 2801-d. The appellate division held that summary judgment should have been granted because the record established that the statutory claim was predicated on defendant's negligence. The appellate court, looking to various memoranda that accompanied the enactment of the statute, found that the legislature's intent was to provide a remedy to patients in residential health care facilities who are denied certain enumerated rights and benefits; the purpose was not to create a new personal injury cause of action based on negligence when that remedy already existed. The Goldberg plaintiff possessed the right to bring a wrongful death action predicated on defendant's negligence, notwithstanding the enactment of PHL ' 2801-d. Thus, the court concluded that to give that section the interpretation urged by plaintiff would authorize a cause of action under that statute for every case based upon negligence and implicating a residential health care facility – something the court found the legislature did not intend.

In Bielewicz v. Maplewood Nursing Home , 4 Misc 3d 475, 778 NYS2d 666 (NY Sup 2004), the court was faced with a plaintiff's motion for leave to amend to add a claim for deprivation of patient rights under PHL ' 2801-d. Defendants relied on Goldberg to oppose the motion, asserting that the statute did not create a new personal injury cause of action because a common law remedy already existed. The Bielewicz court agreed with defendants, noting that the holding in Doe v. Westfall Health Care Center stood not for the proposition that plaintiffs could pursue both statutory and common-law remedies, but that the statutory remedy might be available to a plaintiff if no common-law remedy existed. (As the Fourth Department pointed out in Doe v. Westfall Health Care Center, given the facts presented there, there could be no action against the nursing home under theories of either respondeat superior or strict liability; nor was there a reasonable likelihood that the nursing home could be held liable on a theory of negligent hiring or negligent supervision of an employee.) “The present case, which involves a patient left unattended who drove his wheelchair into a location where he fell, presents a claim of negligent supervision of a patient, a well-recognized category of negligence,” said the Bielewicz court. “There is no difficulty with the plaintiffs' proof or any bar to recovery, if negligence is found, under standard common law principles, nor any problem of damages. The Fourth Department did not overrule Goldberg in its later case (Doe v. Westfall Health Care Center), and under the facts of the present case it is the Goldberg precedent that this court must follow.” The motion to amend the complaint was therefore denied.

Similarly, in Acevedo v. Augustana Lutheran Home , 2004 NY Slip Op 51867U (Sup. Ct., Kings Cty.) (9/24/04), the Supreme Court, Kings County, denied plaintiff's motion seeking leave to amend the complaint to assert claims for deprivation of statutory rights and benefits under Public Health Law ' 2801-d. The court followed the rationale of Bielewicz and found that the plaintiff had an adequate remedy under traditional negligence and malpractice theories. Accordingly, the court held that it would not create a new personal injury cause of action when a remedy already existed.

What Other States Are Doing

Several jurisdictions beside New York have enacted statutes regulating nursing home conditions and treatment of patients. These statutes, commonly known as “nursing home bills of rights,” grant specific rights to nursing home patients and typically provide a private right of action against the home for violation of these enumerated rights. See, e.g., Mass Gen Laws Ann ch 111 ' 70 e; Mo Rev Stat ' 198.003 et seq.; NJ Rev Stat ' 30.13; NC Gen Statutes '131E; Ohio Revised Code ' 3721.17 (I); W Va Code ' 16-5C-15c. These statutes provide that a private plaintiff may obtain both damages and injunctive relief for violation of the specified rights. Recovery of punitive damages and attorneys' fees, neither of which is generally available in a parallel common-law negligence, contract, or wrongful death actions, may also be allowed. See Hoffman and Schreier, “A Private Right of Action Under Missouri's Omnibus Nursing Home Act,” 24 St Louis ULJ 661 (1981).

It appears that although it may be possible in other jurisdictions to join a claim under such a statute with another claim for mistreatment of a patient where the injuries for which recovery is sought under each claim are distinct, double recovery for the same injuries will not be permitted, either in the same or in a subsequent action. For example, in Stiffelman v. Abrams , 655 SW2d 522 (Mo 1983), in which recovery was sought for personal injuries to a patient that resulted in his death, the plaintiffs asserted both a breach of contract claim based on provisions of an admission agreement and a claim under the “bill of rights” provisions of the Missouri Omnibus Nursing Home Act (Mo Rev Stat ' ' 198.003, et seq ). Although the court held that the contract claim for the death of the patient was precluded by the state wrongful death act, it held that the statutory claim was not so precluded based on consideration of the legislative history of the Omnibus Act. Nonetheless, the court noted that since the state wrongful death act included a right to recovery for the decedent's pain and suffering, and the plaintiff had sought recovery for such injuries under the Omnibus Act, the general rule against double recovery would preclude recovery for the later wrongful death action.

Conclusion

By enacting nursing home residents' rights statutes, New York and other state legislatures have conferred private rights of action on patients in nursing homes for injuries sustained as a result of the deprivation of specified rights. However, the courts have not unanimously recognized this cause of action, finding instead that statutorily conferred rights apply only when traditional common-law remedies are unavailable. While future case law will surely clarify this point, this is an issue that counsel should be aware of in prosecuting or defending such actions.