Back in September of 2008, we posted an article about Kash v. Jewish Home & Infirmary of Rochester, a case scheduled to be heard by the Appellate Division, Fourth Department in its upcoming term. The appeal was argued in December and was recently decided by a 3-2 majority of the justices in favor of victims of neglect or abuse in nursing homes. The Appellate Division held that a nursing home resident injured due to the negligence of the staff could bring a medical malpractice claim against the nursing home together with a claim under New York Public Health Law §2801-d. See Kash v. Jewish Home & Infirmary of Rochester, N.Y., Inc., 2009 NY Slip Op 1041, 2009 N.Y. App. Div. LEXIS 1065 (4th Dept. 2009). (For more infromation about §2801-d, read the September 19, 2008 posting).

The Court’s Decision in Kash

Writing for the majority, Justice Pine (joined by Justices Fahey and Gorski) reviewed the somewhat tortured history of the Fourth Department’s prior interpretations of §2801-d in its earlier decisions in Goldberg v. Plaza Nursing Home Comp., Inc., 222 AD2d 1082 (4th Dept. 1995) and Doe v. Westfall Health Center, 303 AD3d 102 (4th Dept. 2002), and held: 

Because we conclude that the language of Public Health Law §2801-d is clear and unambiguous, we are required to give effect to its plain meaning. The remedies set forth in section 2801-d “are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings” (§2801-d [4] [emphasis added]). Therefore, although “plaintiff possessed the right to bring a[n] . . . action predicated upon defendant[s'] negligence” (Goldberg, 222 AD2d at 1084), we conclude that she is not precluded from asserting a separate cause of action under section 2801-d.

The majority deserves credit for correcting an error in interpretation made by a prior panel of the Fourth Department in Goldberg regardless of how painful it may have been to admit the error. The Court’s reversal of Goldberg actually began with its decision in Doe in 2002, when the Court corrected its prior ruling that §2801-d imposed “absolute liability”. The Doe Court ultimately permitted the plaintiff to continue both common law and §2801-d claims simultaneously because, under the facts of that case, the common law claims would have been “difficult to prove”. The majority in Kash, however, went even further. It rejected the Doe holding as well, and recognized that preserving precedent that is clearly wrong must be subordinated to interpreting the statute correctly and as the legislature clearly intended. 

The dissent in Kash, written by Justice Centra, and concurred with by Presiding Justice Scudder, chided the majority for departing from prior precedent in Goldberg and Doe, stating: “We cannot agree with the majority’s conclusion that our prior decisions should be so easily cast aside.” The dissent continued to favor an approach where §2801-d claims would be limited “to those cases in which recovery under a common-law cause of action would prove difficult or inadequate.” However, as the majority emphasized in its criticism of this approach, how would trial courts determine which cases were “difficult” to prove? Since all medical malpractice cases are difficult to prove, how difficult would they have to be to meet this standard? And just as importantly, when would such a determination be made? At the pleading stage? After discovery? The dissent’s proposed solution would, in the words of the majority, be “unworkable.” 

Ruling Helps Victims of Nursing Home Abuse Protect and Enforce Their Rights

Section 2801-d was enacted to provide incentives to nursing home patients to protect and enforce their rights in civil court as a way to combat what was perceived by the legislature as rampant abuse of these elderly patients. These incentives were deemed necessary because awards of damages for elder abuse in nursing homes under the common law were likely to be so low as to provide a disincentive to prosecute those claims.

Twenty-five years later, the same disincentives are still very much present. Thus, §2801-d is as necessary now as it was then to provide benefits not available under the common law, including attorneys’ fees, punitive damages, and exempting any recovery from Medicaid eligibility consideration. The result will be to encourage more civil actions to remedy and recover for nursing home abuses. After Kash, it appears that Public Health Law §2801-d is now fully available to injured residents of nursing homes in all judicial departments in New York State. Before the Fourth Department’s decision in Kash, it was the only judicial department that had restricted the use of §2801-d. 

Unfortunately, the plaintiff Gertrude Kash died last week at the age of 90 of complications caused by the injuries she sustained in a nursing home three years ago. She was a wonderful and courageous woman. She lived long enough to learn of the outcome of her appeal and was proud that the efforts made in her case might help other victims of nursing home neglect or abuse in the future.