NY Nursing Home Litigation: Double Recovery?
An alarming trend has emerged among the plaintiff’s bar in Long-Term Care litigation. Plaintiffs are alleging a right to recovery for death, or other injuries, under both the negligence/wrongful death standards (i.e. pain and suffering and pecuniary loss), and the Public Health Law (§2801-d). Historically, when there is a death resulting from negligence, the recovery is limited to pecuniary loss, but, now the plaintiff’s bar is arguing that when an elderly person who was a resident of a nursing home dies, as a result of a violation of the public health law, the recovery for death should be whatever a jury determines life is worth, even when there is no provable pecuniary loss.
To date, there has not been any case law holding that this interpretation is permissible or impermissible. Thus, as the issue remains undecided in the Courts it is imperative that defense counsel be aware of the arguments being put forth by plaintiffs, and be armed to advocate vigorously on behalf of their clients.
In 1975, New York State instituted a series of reforms for Nursing Homes after a finding of patient abuse and financial corruption, which resulted in Public Health Law § 2801-d. This statute provides a nursing home resident with a private right of action, allowing commencement of a lawsuit against a nursing home to enforce rights or benefits established for the resident’s well-being. The statute states that covered injuries “shall include, but not be limited to physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient.” PHL §2801-d(1).
Subsequently, a series of cases have held that a cause of action for violation of the Public Health Law can be asserted in addition to causes of action for ordinary negligence and wrongful death. See e.g. Doe v. Westfall Health Care ctr., 303 A.D.2d 102 (4th Dept, 2002). The plaintiff’s bar has now been arguing that the recovery in addition to the causes of action being separate, recovery is also separate.
In defending against these claims for double recovery, it is important to undertake a thorough examination of the Legislative history of the Public Health Law, as well as the very foundation of negligence recovery in New York. In regard to recovery for death, the New York State Constitution Article 1 § 16, provides: “[t]he right of action now existing to recover damages for injuries resulting in death, shall never be abrogated…” NY Const art. I, § 16. The effect of this Constitutional provision was to adopt a statutory cause of action for wrongful death, which is currently codified in NY EPTL § 5-4.3, and is pecuniary loss. As this Constitutional recovery cannot be abrogated, the Public Health Law, has no authority to award damages for death over and above the EPTL. Simply put, the Constitutional foundation of the State forbids the recovery that plaintiff’s bar is seeking.
Moreover, a plain reading of the Legislative History of the Public Health Law shows that the purpose of adding examples of injuries to the statute, including “death” was to clarify that the statute covers all injuries: the amendment “simply sets forth examples of compensable injuries,” and “to make clear that any injury may be a predicate for a cause of action under Pub. H. L. §2801-d.” 2009 Bill Jacket, Public Health Law § 2801-d.
Nonetheless, the issue of recovery under the Public Health Law 2801-d remains undecided in the New York Courts, and defense counsel must remain vigilant and informed in order to successfully defend these long-term care facilities.