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March 18, 2016

New York's Appellate Court Rules that Public Health Law § 2801-d Applies Only to Nursing Homes

Public Health Law §2801-d creates a private right of action for residents of “residential health care facilities” thus enabling them to sue for deprivation of a right or benefit created for their well-being.  The statute allows for the recovery of compensatory damages, punitive damages, and even attorney fees.  It is largely responsible for the dramatic increase in civil lawsuits brought against New York’s nursing homes during the past decade.  There has been much uncertainty over the last several months as to whether the statute also applies to assisted living facilities.  New York’s Appellate Court, Second Department, recently clarified the issue in its decision of Novick v. South Nassau Communities Hospital, 2016 NY Slip Opinion 01304.

The Novick case involves a 75-year-old male with a multitude of health problems, including diabetes and multiple neck fractures he sustained during a motor vehicle accident.  Mr. Novick was admitted to the hospital for treatment of the neck fractures where he soon developed a stage III sacral ulcer.  He was eventually transferred to a nursing home where his sacral ulcer worsened to stage IV.  He eventually died from his injuries.

Mr. Novick’s estate subsequently brought an action against many of Mr. Novick’s medical providers, including the hospital and the nursing home.  The action was based on theories of medical malpractice, wrongful death and violations of Public Health §2801-d.  The hospital and the nursing home moved for summary judgment arguing that the ulcer was clinically unavoidable.  The hospital also argued that Public Health Law §2801-d did not apply to hospitals.  The trial court granted the defendants’ motions and the Appellate Court affirmed.  In its written decision, the Appellate Court, Second Department, specifically stated that Public Health Law §2801-d “applies only to Nursing Homes.”

The Novick decision is a good one for operators of assisted living facilities.  It is important to emphasize, however, that the issue has not yet been specifically decided by New York’s other three appellate courts or its highest court, the Court of Appeals.

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