Collateral Sources

The statute makes clear that “[h]ealth insurers (other than Medicare and Medicaid) shall be the primary payers of qualifying health care costs of qualified plaintiffs”. It also deprives health insurers of any right of subrogation against the fund to recover these costs. Presumably Medicare and Medicaid will also defer to the Fund for payment of medical expenses on behalf of qualified plaintiffs, although the chance of a qualified plaintiff being Medicare eligible seems a bit remote. Since most settlements of birth injury cases result in the formation of a supplemental needs trust which permits the child to continue to receive Medicaid benefits, there will be a significant shift in the burden of paying these expenses away from Medicaid and to the Fund.

Attorneys’ Fees

The statute provides that the attorneys’ fee shall be paid entirely by the defendant and its insurer including any amount apportioned to future medical expenses in the judgment or settlement. It also provides that “… the portion of the attorney fee that is allocated to the non-fund elements of damages shall be deducted from the non-fund portion of the award in a proportional manner.”  This presumably means that the defendant or insurer must pay all of the damages awarded or provided for in the settlement which are not for future medical expenses and must also pay an attorney’s fee for the portion of the award or settlement that is attributable to future medical expenses. The mathematics involved in applying the sliding scale Judiciary Law fee schedule with the structured judgment provisions of CPLR Art. 50-A and then backing out the portion attributable to the future medical expenses will be frightening for most attorneys who went into law because they were not good at math. More…

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). More…

New York Public Health Law §2801-d provides a statutory remedy to nursing home patients for injuries suffered as a result of the deprivation of certain rights or benefits granted by contract, or by applicable federal and state law. The statute mandates an award of compensatory damages of no less than twenty-five percent of the nursing facility’s daily rate for each day the patient’s injury exists. In addition, it provides for punitive damages and attorneys’ fees in appropriate circumstances.

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