Jun 27 2016

Long Term Care Liability—Analysis and Defense

Advances in medical care have increased the life expectancy of much of the population which has led to more and more people requiring long term care in their later years. With the increase of the residency levels of nursing homes and assisted living facilities has come an increase in litigation over the care received at these facilities. It is important to understand the types of claims that arise (ranging from injuries associated with falls and development of decubitus ulcers/bedsores, to allegations of the facility's failure to develop and update the patient/resident's individualized plan of care), the statutes governing long-term care facilities, and the complexities in defending these claims.

The New York Public Health Law defines an "assisted living residence" as an entity which provides for housing, on-site monitoring, and personal care services in a home-like setting. They are also to provide daily food service, 24-hour on-site monitoring, case management services, and the development of an individualized service plan for each resident.1 Assisted living operators must conduct an initial pre-admission evaluation to ensure that the potential resident's care needs can be met. Residents must submit a written report from their physician/nurse following a physical examination which ensures that the resident is not in need of medical or nursing care which would require placement in a different type of facility.2 Upon admission, assisted living facilities must develop a written individualized service plan for each resident.3

In contrast, nursing homes serve residents who need 24-hour skilled nursing care. A "nursing home" is defined as a facility which provides nursing care to sick, invalid, infirm, disabled, or convalescent persons in addition to lodging and board or health-related services.4 Upon admission, nursing homes have a duty to properly assess each resident and to develop and keep current an individualized comprehensive plan of care to meet each resident's needs.5 Allegations of the facility's failure to do so give rise to lawsuits based upon negligence, negligence per se (in violation of New York Public Health Law (PHL) §2801-d, 10 NYCRR Part 415, and 42 CFR Part 483), and medical malpractice. Similar claims can arise concerning assisted living facilities and nursing homes. However, the application of PHL §2801-d has been limited to nursing homes, at least as construed by the Appellate Division, Second Department this year in Novick v. South Nassau Communities Hospital.6

In Novick, following a motor vehicle accident, decedent was first treated at South Nassau Communities Hospital before being admitted to long-term care facilities. He was first admitted to The Komanoff Center for Geriatric and Rehabilitative Medicine and was then transferred to Long Beach Medical Center. The Second Department upheld the Supreme Court's decision granting branches of defendants' summary judgment motions dismissing the PHL §2801-d cause of action against Long Beach Medical Center, holding that the statute only applied to nursing homes, and therefore applied to Komanoff and not to Long Beach.7

While the court in Novick did not address its reasoning, it quoted a 2010 Court of Claims case to reach this conclusion: "Further, Public Health Law §2801–d Private actions by patients of residential health care facilities, expressly applies only to 'residential health care facilities,' which is a term more narrowly defined than the term hospital and is limited to a 'nursing home or a facility providing health-related service.'"8 Based on Novick, the Second Department appears to further limit the application of this statute to nursing homes.

Common Claims

Perhaps the most common claims are those arising out of falls, which often result in fractures. Due to the age and impairments of many residents, falls are extremely common. The types of injuries resulting from falls are of course wide-ranging, but include fractured arms, hips, and spines, as well as head trauma, and more seriously, subdural hematomas (collection of blood between the covering of the brain and the brain's surface). Such falls and fractures in elderly people could be the first step in more serious problems/complications, and could even lead to death.

Another frequent claim arises out of the development of pressure sores/decubitus ulcers (also known as bedsores). They are so common that they are governed by their own code provision (42 CFR 483.25(c)) which states: "Based on the comprehensive assessment of a resident, the facility must ensure that: (1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and (2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores."

As you might imagine, whether or not the sores were "avoidable" is a frequent issue of contention in long-term care litigation. Other common claims include failure to properly implement the resident's plan of care, failure to update the resident's plan of care, medication errors, failing to maintain adequate nutrition/hydration, abuse/neglect, development of infections, failure to provide adequate services/staffing, and negligent training.

The requirements of long-term care facilities are outlined in 42 CFR Part 483 which includes residents' rights and standards relating to quality of life and quality of care. These rights and standards are also codified by the State of New York in 10 NYCRR Part 415. Furthermore, PHL §2801-d allows for a private right of action for any resident/patient of a residential health care facility who suffers physical harm, emotional harm, financial loss, or death.9 While there has been some uncertainty as to whether PHL §2801-d applies to assisted living facilities, as discussed above, this provision has been held to apply only to nursing homes.10

Of note, PHL §2801-d mandates that upon a finding that a patient was deprived of a right or benefit, and was injured as a result, absent the facility establishing that it exercised all care reasonably necessary to prevent/limit this deprivation and injury, the plaintiff be awarded sufficient compensatory damages—and no less than 25 percent of the daily per-patient rate of payment.11 Additionally, where the deprivation is found to be willful or in reckless disregard of the lawful rights of the patient, punitive damages may be assessed.12 However, as discussed below, a court decision has called the validity of some of these provisions into question.


An issue of great debate is whether nursing home cases fall under general negligence or medical malpractice. The answer varies depending on the allegations. However, this distinction and determination is key to defending these claims. First and foremost, the statute of limitations for medical malpractice claims is 2.5 years as opposed to the three-year statute of limitations to bring negligence claims. As such, depending on when the suit is commenced, the first and best strategy may be a pre-answer motion to dismiss on statute of limitations grounds.

Further, simply because plaintiff pleaded a cause of action as "negligence" as opposed to "medical malpractice" does not prevent defendants from arguing that it was improperly pleaded. ["T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and 'no rigid analytical line separates the two.'" However, "a claim sounds in medical malpractice when the challenged conduct 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.' By contrast, when the 'gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the failure in fulfilling a different duty,' the claim sounds in negligence."13 "The critical factor in distinguishing whether conduct may be deemed malpractice or ordinary negligence is the nature of the duty owed to the plaintiff that the defendant allegedly breached."14

Defending the negligence causes of action in a long-term care case is similar to defending any negligence case, focusing on whether the actions of the facility were reasonable under the circumstances and whether they were a substantial factor in causing the alleged injuries. The medical malpractice causes of action focus on whether there was a departure from good and accepted medical practice. It is also important to note that if a plaintiff in a long-term care case is alleging medical malpractice, the complaint must generally be accompanied by a Certificate of Merit affirming that the attorney has reviewed the facts of the case, has consulted with at least one physician, and has concluded that based upon such review and consultation, there is a reasonable basis for the commencement of the action.15

Until recently, another consideration when defending these types of claims had been that New York's Public Health Law provides that any waiver by a patient (or legal guardian) of the right to commence an action as well as any waiver to a patient/resident's right to a trial by jury is null and void, and without legal force or effect.16 Furthermore, exhaustion of any available administrative remedies is not a prerequisite to commencing a suit under the PHL.17 These provisions had essentially prohibited pre-dispute arbitration agreements of personal injury claims and wrongful death claims against nursing homes.

However, in August 2015, the First Department looked beyond the text of the PHL. In Friedman v. Hebrew Home for Aged at Riverdale,18 defendant moved to compel arbitration pursuant to the arbitration clause in the admission agreement signed by the plaintiff. After the trial court denied defendant's motion, the Appellate Division reversed, holding that the arbitration clause was not invalidated by PHL §2801-d since defendant was engaged in interstate commerce and the Federal Arbitration Act19 preempts the PHL. Regardless of the Court's holding in Friedman, in light of the Second Department's recent holding that PHL §2801-d applies only to nursing homes, that provision would not create an obstacle to enforcing an arbitration clause signed by a resident of an assisted living facility.

In Friedman, the court used interstate commerce to enforce an arbitration clause in the contract. However, it remains unclear if New York courts will continue to find ways to enforce arbitration agreements and ultimately invalidate PHL §2801-d. Regardless, general contractual and agency principles remain at play and there will continue to be obstacles in enforcing such clauses (for example—the legal authority of a family member who signed the agreement on the resident's behalf, or the mental competence of a resident who signed the agreement containing an arbitration clause).

It will be critical to monitor the court's future treatment of arbitration clauses, their applicability, and their interplay with PHL §2801-d as it may dramatically alter the future of long-term care litigation in New York going forward. In defending these cases, it is critical to be mindful of these issues as well as whether plaintiff has properly pleaded his cause of action, whether it is timely pursuant to the applicable statute of limitations, and the various other intricacies of litigating long-term care cases to provide the strongest possible defense for your client.


1. N.Y. PHL §4651(1).

2. N.Y. PHL §4657.

3. The rules and regulations which govern assisted living facilities are codified in NYCRR, Title 10, Chapter 10, as well as Article 46-B of the New York Public Health Law.

4. N.Y. PHL §2801(2).

5. 10 NYCRR 415.11.

6. Novick v. South Nassau Communities Hospital, 2016 NY Slip Op 01304 (2d Dept. 2016).

7. Novick v. South Nassau Communities Hospital, 2016 NY Slip Op 01304 (2d Dept. 2016).

8. Randone v. State, 30 Misc.3d 335, 338 (Ct. Cl. 2010).

9. N.Y. PHL §2801-d(1).

10. Novick v. South Nassau Communities Hospital, 2016 NY Slip Op 01304 (2d Dept. 2016).

11. N.Y. PHL §2801-d(2).

12. N.Y. PHL §2801-d(2).

13. Rey v. Park View Nursing Home, 262 A.D.2d 624, 626 (2d Dept. 1999) (internal citations omitted).

14. Annunziata v. Quest Diagnostics, 127 A.D.3d 630, 631 (1st Dept. 2015).

15. N.Y. CPLR §3012-a.

16. N.Y. PHL §2801-d(7) and (8).

17. N.Y. PHL §2801-d(4).

18. Friedman v. Hebrew Home for the Aged at Riverdale, 131 A.D.3d 421 (1st Dept. 2015).

19. The Federal Arbitration Act (9 U.S.C. §1) provides for contractually based compulsory arbitration.

This article first appeared in the June 23, 2016, edition of the New York Law Journal.

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