N.Y. Public Health Law § 2801-d: Private actions by patients of residential health care facilities

§ 2801-d. Private actions by patients of residential health care

facilities. 1. Any residential health care facility that deprives any

patient of said facility of any right or benefit, as hereinafter

defined, shall be liable to said patient for injuries suffered as a

result of said deprivation, except as hereinafter provided. For purposes

of this section a "right or benefit" of a patient of a residential

health care facility shall mean any right or benefit created or

established for the well-being of the patient by the terms of any

contract, by any state statute, code, rule or regulation or by any

applicable federal statute, code, rule or regulation, where

noncompliance by said facility with such statute, code, rule or

regulation has not been expressly authorized by the appropriate

governmental authority. No person who pleads and proves, as an

affirmative defense, that the facility exercised all care reasonably

necessary to prevent and limit the deprivation and injury for which

liability is asserted shall be liable under this section. For the

purposes of this section, "injury" 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.

2. Upon a finding that a patient has been deprived of a right or

benefit and that said patient has been injured as a result of said

deprivation, and unless there is a finding that the facility exercised

all care reasonably necessary to prevent and limit the deprivation and

injury to the patient, compensatory damages shall be assessed in an

amount sufficient to compensate such patient for such injury, but in no

event less than twenty-five percent of the daily per-patient rate of

payment established for the residential health care facility under

section twenty-eight hundred seven of this article or, in the case of a

residential health care facility not having such an established rate,

the average daily total charges per patient for said facility, for each

day that such injury exists. In addition, where the deprivation of any

such right or benefit is found to have been willful or in reckless

disregard of the lawful rights of the patient, punitive damages may be

assessed.

3. A patient residing in a residential health care facility may also

maintain an action pursuant to this section for any other type of

relief, including injunctive and declaratory relief, permitted by law.

4. Any damages recoverable pursuant to this section, including minimum

damages as provided by subdivision two of this section, may be recovered

in any action which a court may authorize to be brought as a class

action pursuant to article nine of the civil practice law and rules. The

remedies provided in this section are in addition to and cumulative with

any other remedies available to a patient, the patient's legal

representative, or the patient's estate at law or in equity or by

administrative proceedings, including tort causes of action, and may be

granted regardless of whether such other remedies are available or are

sought. A violation of subdivision three of section twenty-eight hundred

three-c of this article is not a prerequisite for a claim under this

section. Exhaustion of any available administrative remedies shall not

be required prior to commencement of suit hereunder.

4-a. Under this section, any action that may be brought, and any

relief that may be sought or received, may be brought, sought or

received in an appropriate case by the patient's legal representative or

the patient's estate.

5. The amount of any damages recovered by a patient, in an action

brought pursuant to this section shall be exempt for purposes of

determining initial or continuing eligibility for medical assistance

under title eleven of article five of the social services law 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 said title eleven.

6. If judgment in an action maintained under this section is rendered

in favor of the plaintiff, in its discretion the court may, if justice

requires, award attorneys' fees to the plaintiff based on the reasonable

value of legal services rendered and payable by the defendant.

7. Any waiver by a patient or his legal representative of the right to

commence an action under this section, whether oral or in writing, shall

be null and void and without legal force or effect.

8. Any party to an action brought under this section shall be entitled

to a trial by jury and any waiver of the right to a trial by a jury,

whether oral or in writing, prior to the commencement of an action,

shall be null and void, and without legal force or effect.

9. No insurance premium or part thereof paid by any residential health

care facility which is attributable solely to insurance against

liability pursuant to this section shall be allowed as a reimbursable

cost for purposes of any proposed rate schedule for payments for

hospital or health-related service which the commissioner shall

determine and certify pursuant to section twenty-eight hundred seven of

this chapter.

10. a. No person shall discriminate against any patient of a

residential health care facility because such patient, or the patient's

legal representative, has brought or caused to be brought any action

pursuant to this section, or against any patient or employee of a

residential health care facility because such patient or employee has

given or provided or is to give or provide testimony or other evidence

for purposes of such action.

b. Any patient who has reason to believe that he or she may have been

discriminated against in violation of this subdivision may, within

thirty days after such alleged violation occurs, file a complaint with

the commissioner. The commissioner shall investigate any such complaint,

and shall, if such complaint is deemed meritorious, serve upon the

administrator of the subject facility, in his capacity as a

representative of the facility, either by personal service or by

certified mail addressed to the administrator in care of the facility,

return receipt requested, a complaint stating the substance of the

alleged discrimination with reasonable particularity. A hearing shall be

conducted in accordance with section twelve-a of this chapter within

thirty days of the service of such complaint. The hearing officer shall

make a report of his findings to the commissioner, who, if he determines

that a violation of this subdivision has occurred, may grant whatever

relief is necessary and appropriate to remedy the violation, including,

but not limited to readmittance of patients wrongfully discharged. Any

such order of the commissioner shall be appealable by a proceeding under

article seventy-eight of the civil practice law and rules.

c. Whenever the commissioner has issued an order as provided in this

subdivision he may apply to any court of competent jurisdiction for the

enforcement of such order.

d. Any action taken by the commissioner in accordance with the

provisions of this subdivision shall not be exclusive, and may be taken

in conjunction with an action for a civil penalty for a violation of

paragraph a of this subdivision, or any private civil action brought by

an injured party, or both.

e. Any employee who has reason to believe that he or she may have been

discriminated against in violation of this subdivision may bring a

proceeding in accordance with the provisions of article fifteen of the

executive law.