Private Right of Action for Nursing Home Residents – New York Public Health Law Sect. 2801-d

New York Public Health Law section 2801-d provides a private right of action to residents of nursing homes who have been injured as a result of the nursing home depriving a resident of certain rights and benefits provided by state and federal law.  A cause of action under this statute may be brought separately from a negligence or medical malpractice claim.

The statute says:

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.

Injury” is defined as any physical, emotional or financial harm, or death.  The “rights and benefits” a resident of a nursing home has can be found in state law, federal law or contractually through the facility’s own agreement to accept and treat the patient.  Some examples include: the right to be free from medication errors, the right to have an assessment by an interdisciplinary team and provided with a comprehensive care plan based upon that assessment, the right to receive quality care from qualified health care providers, an environment that is free of accident hazards, notification of any changes in status that requires a need to alter treatment.

When a nursing home deprives a resident of any right or benefit provided for by law or contract, and the deprivation of that right or benefit causes injury, then the nursing home is liable and you may be able to recover damages for your injury.  In matters where the deprivation of a resident’s rights or benefits results in the resident’s death, the representative of the estate may bring an action to recover damages.

Who is liable?  New York Public Health Law section 2808-a explains that “Every person who is a controlling person of any residential health care facility liable  under any  provision  of  this  article  to any person or class of persons for damages or to the state for  any  civil  fine,  penalty,  assessment  or damages,  shall  also  be liable, jointly and severally, with and to the same extent as such residential health care facility, to such person  or class  of  persons  for damages or to the state for any such civil fine, penalty, assessment or damages.”

A “controlling person” is one who by reason of a direct or indirect ownership interest (whether of record or beneficial) has the ability, acting either alone or in concert with others with ownership interests, to direct or cause the direction of the management or policies of said facility.   What does this mean to a resident who has been injured at a nursing home?  It means that the nursing home facility itself is not only liable to an injured resident, but each and every owner that has an interest in the facility is also liable.

For example, if a nursing home is called Welcome Home, LLC and the corporation is comprised of four individuals who have an ownership interest, the corporation, as well as, each of the four owners will be held liable to a resident who has been injured as a result of the facility depriving the resident of any right or benefit.   Therefore, a doctor or nurse is not held liable just because they are employed at the nursing home facility.  If the facts support a cause of action against a doctor separately for malpractice, then that will be a separate and distinct cause of action.  Only the facility and its owners will be held liable to an injured resident for damages under this statute.


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