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.

It was the intent of the Legislature to supplement the rights of nursing home patients under existing law. Subsection (4) of the statute specifically states that “[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings.” Public Health Law §2801-d(4). Moreover, unlike common law claims, the Legislature provided that the amount of any damages recovered by a patient under the statute “shall be exempt for purposes of determining initial or continuing eligibility for medical assistance [Medicaid]” and “shall neither be taken into consideration nor required to be applied toward the payment or part payment of the cost of medical care or services available under” Medicaid. Public Health Law §2801-d(5). Thus, any damages recovered by a patient under the statute do not affect Medicaid eligibility and are not subject to recoupment by Medicaid. This is not the case with damages recovered in ordinary negligence or medical malpractice claims.

Two cases from same court with different results

In 1995, the New York State Appellate Division Fourth Department held in Goldberg v. Plaza Nursing Home Comp., Inc., 222 AD2d 1082 (4^th Dept. 1995) that patients were not entitled to a remedy under §2801-d if they had a viable common law negligence claim arising out of the same injury. This result was followed by most other courts in the state for seven years until 2002, when the same court decided Doe v. Westfall Health Center, 303 AD3d 102 (4^th Dept. 2002). Doe was a notorious case in which a comatose nursing home patient was raped and impregnated by one of her care givers. The lower court had dismissed the plaintiff’s claim under Public Health Law §2801-d, relying on Goldberg. On appeal, the Fourth Department reversed the trial court and reinstated the plaintiff’s Public Health Law claim. In doing so, the Court specifically overruled Goldberg “insofar as we determined therein that summary judgment dismissing the Public Health Law cause of action was appropriate despite doubt concerning the efficacy of the remaining common law cause of action.”

Doe v. Westfall - Almost universally followed since 2002

Since 2002, when the Fourth Department decided Doe, the other three Judicial Departments of the New York State appellate court have all held - expressly or implicitly - that the private right of action granted to nursing home patients by Public Health Law §2801-d may be brought together with claims of negligence and/or medical malpractice arising out of the same injury. These cases are consistent with the apparent intent of the Legislature to provide remedies in §2801-d(4) that “are in addition to and cumulative with any other remedies available to a patient.” Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178 (1^st Dept. 2002); Ward v. Eastchester Health Care Center, LLC, 34 AD3d 247 (1^st Dept. 2006); Young v. Patterson, 17 AD3d 667, 667-668 (2^nd Dept. 2005); Fleming v. Barnwell Nursing Home and Health Facilities, Inc., 309 AD2d 1132 (3^rd Dept. 2003).

In addition, there are at least nine published and unpublished lower court cases supporting this view. See Morisette v. Terence Cardinal Cooke Health Care Center, 8 Misc.3d 506 (NY Co 2005); Pasqua v. Bon Secours New York Health System, Inc., 13 Misc.3d 1036 (Bronx Co 2006); Sullivan v. Our Lady of Consolation Geriatric Care Ctr., 236 NYLJ 119 (Suffolk Co 2006); Washington v. Asfaw, 15 Misc.3d 1107A (NY Co 2007); Passet v. Menorah Nursing Home, Inc., 16 Misc.3d 1117A (Kings Co 2007); Marshall v. Leppard, 17 Misc.3d 1103A (Nassau Co 2007); Bush v. Cobble Hill Health Center, Inc., 17 Misc.3d 1135A (Kings Co 2007); Osborne v. Rivington House, 19 Misc.3d 1132A (NY Co 2008); and Yakkay v. Asher, 239 NYLJ 59 (NY Co 2008). The Morisette case, in particular, contains an outstanding discussion of the legislative history and intent behind §2801-d. Morisette, 8 Misc.3d at 509-514.

Fourth Department should clarify this issue in Kash v. Jewish Home of Rochester

This issue will again be presented to the Appellate Division Fourth Department in Kash v. The Jewish Home of Rochester, which is scheduled for oral argument in early December of 2008. The Kash case involves claims for negligence and medical malpractice against the nursing home and its staff doctors who initially allowed a patient to fall twice and then failed to detect the spinal cord injury suffered by the patient as a result. The patient became permanently paralyzed before the spinal cord injury was finally diagnosed days after her second fall. The trial court denied plaintiff’s motion to amend the complaint on the ground that the Goldberg case bars claims under §2801-d where the plaintiff also has a viable claim for negligence. In so holding, the trial court implicitly found that the Doe case did not overrule Goldberg in all instances.

Limitations of a common law remedy due to the effect on Medicaid eligibility

Neither Goldberg nor Doe discussed the explicit benefit conferred by the Legislature in §2801-d that any damages recovered from the nursing home under the statute shall not be considered toward the patient’s future Medicaid eligibility. This is a major benefit of the §2801-d claim since without it, most plaintiffs who recover damages will lose their Medicaid eligibility and become private pay patients.

Plaintiff in Kash, represented by Faraci Lange, LLP of Rochester, New York, has focused on this aspect of the §2801-d claim in her appeal. Plaintiff is attempting to demonstrate that if nursing home patients are confined to bringing common law claims alone, they will be deprived of the benefit of those claims because of Medicaid eligibility rules. Such a result would be absurd. Any monetary damages recovered by a patient under a common law claim would in effect be paid right back to the same nursing home where the patient’s injury occurred, only at the higher private pay rate. Conceivably, nursing homes could benefit financially from their own neglect. According to plaintiff’s appeal in Kash, this is expressly why the Legislature enacted §2801-d - to encourage private rights of action by nursing home patients in order to discourage nursing home patient abuse. A vital component of that remedy is § 2801-d(5), which was meant to avoid the conceivably anomalus result of putting more money into the pockets of nursing home whose patients are neglected or abused.