New York’s Nursing Home Abuse Statute
April 8, 2016 | Personal Injury
In the 1970s a series of scandals converged involving New York state’s system of nursing homes, which culminated in then Governor Carey’s appointment of a special prosecutor to investigate alleged unlawful practices within nursing homes throughout the state. At the time, the New York Times helped to uncover systemic, widespread occurrences of underfeeding, safety violations and other horrendous nursing home abuses. The governor saw to that he left no stone unturned.
Governor Carey, acting on recommendations from his secretary of state Mario Cuomo, set up a Moreland Commission to give the investigation teeth, in the form of subpoena powers and public hearings. He provided additional auditors and investigators to ensure that nursing homes acted within the bounds of the law and reported their finances accurately, without conflicts of interest. Within the milieu, Governor Carey submitted 11 laws to the legislature, including New York’s very expansive and nursing home resident friendly NY PHL §2801-d. 2801 provides nursing home residents a private, civil cause of action, predicated on violations by a nursing home of laws, rules and regulations designed to protect the patient. These rights were intended by the legislature to be in addition any other laws that provided nursing home residents the right to seek compensation for damages, such as a typical negligence lawsuit would permit and includes the right to punitive damages and reasonable attorney’s fees if the nursing home acted recklessly or willfully.
Additional Common Law Protections
Under typical common law lawsuits a person may sue for damages resulting from the negligence of another. In order to prevail under common law negligence actions, the nursing home resident, or plaintiff, must prove four things:
- That the nursing home had a legal duty to exercise reasonable care. This can be relatively straightforward, as any nursing home resident is protected by various state and national laws and can also rely on residential contracts upon admission.
- That the nursing home failed, or breached the duty to provide the appropriate level of care.
- That the nursing home resident was injured as a result of the breach.
- That the cause of those damages was the breach of the nursing home’s duty to provide reasonable care to the plaintiff.
It should also be noted that in order to ensure that the nursing home resident’s damages are not reduced, you show that the nursing home resident did not contribute to the damages through their actions or inactions.
Learn to Identify the Signs
It is critical to your loved ones that you learn some of the signs of nursing home abuse or neglect. If there is evidence of bedsores, infections that are not healing and not being treated, sudden weight gain or lose, unsanitary conditions in your loved one’s room or throughout the facility, dehydration, bizarre, unexplained behavior, or even changes in medications that seem unjustified. These signs are not enough alone for a negligence lawsuit, but it is sufficient for you to inquire of the staff and other members of the facility.
If you or a loved one were injured in a nursing home due to the negligence or inadvertence of staff or due to the failure of the staff to properly adhere to applicable laws, rules or regulations, you need competent legal representation. The attorneys of Napoli, Shkolnik, PLLC can help guide you through this trying time. You can reach us at 212-397-1000.