Using the Public Health Law in Assisted Living Facility Malpractice

John Fisher
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Stopping Medical Injustice

Nursing home residents are given a private right of action under Public Health Law § 2801-d, allowing them to sue nursing home operations for depriving them of a right or benefit that has been created for their well-being.  Residents may be able to recover both compensatory and punitive damages.

 

This statute was enacted to remedy the documented accounts of abuse by nursing home operators in the 1960s and 1970s.  The New York State Legislature enacted § 2801-d, and took other remediating measures, in response to these accounts.  Nursing home residents have used this statute as grounds for lawsuits against nursing home operators.  Claims under the statute can be asserted along with claims of negligence in general or nursing home malpractice.

 

While it is clear that this statute applies to residents of residential health care facilities, it is not necessarily clear that it applies to the residents of other types of state-licensed facilities.  In a recent case Burkhart v. People Inc., out of the Fourth Department, this question was addressed with regards to group homes.  The Fourth Department also mentioned assisted living facilities in their opinion.  

 

Group homes are not licensed or regulated by the Department of Health, whereas nursing home facilities are.  Rather, these facilities are licensed and operated either by the Office of Mental Health or the Office of People with Developmental Disabilities.  Therefore, the requirements to license one of these facilities differ from nursing homes.

 

Another difference between these group homes and nursing homes are the services provided in them.  The goal of group homes is to give the individual the ability to function in society as much as possible, as long as their functional abilities allow.  Their primary purpose is not to provide health services to their residents, whereas that is the case in nursing homes.

 

In Burkhart v. People Inc., the plaintiff’s claim under § 2801-d was dismissed, finding that the statute did not apply in cases involving group homes.  To reach its conclusion, the Court compared and contrasted group homes with residential health care facilities.  It found that the cause of action the Public Health Law provided was intended for residential nursing homes, but also added that the statute also applies to other facilities, including assisted living facilities.  

 

However, whether residents of assisted living facilities could use § 2801-d as a cause of action was not the question before the court in this case.  Therefore, it is questionable whether future cases will apply the statute in claims involving assisted living facilities.  Additionally, there has been one case that applied to assisted living facilities, and that court determined that § 2801-d did not apply.  To settle the issue there may need to be another Fourth Department case on the issue.

 

However, if you or a loved one has experienced anesthesia awareness, contact an experienced medical malpractice attorney as soon as possible to evaluate your case.  You could be entitled to damages for the suffering you experienced.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.

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