Page 10 - The Suffolk Lawyer - March 2021 - Vol. 36, No. 2
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                                          Nursing Home Negligence:

              Expanding the Scope of Compensable Damages Under Phl 2801-D

                                                                       By Christopher M. Glass

                    ursing home injury cases occupy their own niche in the per-         The Court began its analysis by recognizing the general rule in
                    sonal injury world and are governed by a set of rules which negligence cases that “a level of cognitive awareness is a prerequi-
            N can sometimes defy standard negligence principles. Re- site to a recovery for pain and suffering.” Although the decedent in
            cently, in a compassionate and well-reasoned decision, Justice Smith had no cognitive awareness for the overwhelming majority of
            Billings in the Supreme Court, New York County, upheld a the time following his insult, the Court nonetheless upheld the entire
            $2,500,000 pain and suffering award in a nursing home injury case pain and suffering award. The Court held that PHL 2801-d, by its
            where the injured victim was neither conscious nor aware of his suf- terms, identifies as “actionable injuries” (1) physical harm to a pa-
            fering for a period of six months prior to his death. In any other in- tient; (2) death of a patient; and (3) financial loss to a patient. As a
            jury case predicated on usual negligence principles, the absence of prelude to expanding the definition of compensable pain and suf-
            “cognitive awareness” of an injury would have precluded such an fering in this setting, Justice Billings found that these statutory in-
            award.                                                                   juries do not require conscious awareness of the harm. Justice
               Some brief background is necessary. Nursing homes are governed Billings further offered that the damages recoverable for these statu-
            by a complex set of Federal and New York State regulations which tory injuries under PHL 2801-d “are in addition to” damages recov-
            prescribe minimum practices for                                                                              erable for pain and suffering in
            the health and well-being of nurs-                                                                           the underlying negligence action.
            ing home residents. In New York,                                                                                Because there was a violation
            the regulations are complemented                                                                             of the Public Health Law in Smith,
            by New York Public Health Law                                                                                supra, there was “culpability be-
            2803-c, which details the rights of                                                                          yond mere negligence” giving the
            residents, and Public Health Law                                                                             Court a mandate to achieve “a
            2801-d, which provides for a pri-                                                                            balance between injury and dam-
            vate right of action against the                                                                             ages” unrestrained by the dece-
            nursing home for violation of a                                                                              dent’s lack of cognitive awareness
            resident’s rights as those rights                                                                            of his plight. Essentially, the Court
            are enshrined in statutes, regula-                                                                           used the violation of PHL 2801-d
            tions , or even in the nursing                                                                               to untether the “cognitive aware-
            home contract. Public Health Law                                                                             ness” requirement from pain and
            2801-d does not require proof of                                                                             suffering law.
            negligence.  It is its own statutory                                                                            If the ruling is upheld, the im-
            cause of action. A compensable                                                                               plications of the case could be
            Section 2801-d violation is made out if (1) the resident suffered a enormous to the assessment of damages in nursing home cases.
            deprivation of a right or benefit conferred by statute, regulation, or Not only would the court be empowered to do rough justice and
            contract, and (2) there is an injury.                                    sustain damage awards for pain and suffering to a fully comatose
               Traditionally, nursing home injury claims include a negligence patient, but it would be no stretch to argue, for example, that
            cause of action, a Public Health Law 2801-d cause of action, and wrongful death awards in Section 2801-d cases should be similarly
            often medical malpractice, negligence per se, and breach of nursing untethered from the requirement of pecuniary loss, because “death”
            home contract causes of action. When the injured party dies, as is is also listed as a compensable injury in Section 2801-d “in addition
            often the case given the advanced age and frail condition of many to” wrongful death damages. While that result would certainly do
            of these plaintiffs, a wrongful death claim is included. Yet, as any rough justice and overturn the current notion that it is “cheaper for
            personal injury practitioner will tell you, if you cannot prove pecu- a defendant to kill a nursing home resident to than injure the resi-
            niary loss in the wrongful death claim, the recovery on that cause dent,” it turns New York’s wrongful death statutes on their heads.
            of action will be largely symbolic.                                      Not surprisingly, the decision in Smith, supra, is currently on appeal.
               The inequity in the world of nursing home litigation involving res-      However, until the Appellate Division weighs in, plaintiff attorneys
            ident deaths is that they almost always occur in settings where the would be well served to argue for the scope of compensable dam-
            decedent was not supporting or providing service to any distributee; ages under PHL 2801-d envisioned by Justice Billings.
            ie- where there is little or no “pecuniary” loss. The settlement and
            verdict value of these cases, then, is largely determined by the pain                            Christopher M.Glass
            and suffering award.
               In Smith v. Northern Manhattan Nursing Home, Inc., the Supreme                                Associate at Rappaport, Glass, Levine & Zullo, LLP
            Court in New York County was called upon to decide whether Section                               Christopher M. Glass is an associate at Rappaport,
            2801-d would support a jury’s pain and suffering award of                                        Glass, Levine & Zullo, LLP, where he specializes in the
                                                                                                             field of personal injury, medical malpractice, and
            $2,500,000 to a resident who potentially was aware of his declining
                                                                                                             nursing home negligence litigation.
            condition for only a day, and then became comatose, unaware, and
            non-responsive for the next six months up to his to his death.

            10 THE SUFFOLK LAWYER • The Official Publication of the Suffolk County Bar Association •   MARCH 2021 EDITION
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