Medical & Nursing Home Liability Pointers - 4/30/21


Hurwitz & Fine's
Medical & Nursing Home Liability Pointers
April 30, 2021


A Message from Pat Curran

There continues to be more developing and important legislation and regulations for nursing homes in New York, including a mandate that 70% of nursing home revenues shall be spent on direct resident care costs, with profits limited to not more than 5%.  More information is provided below and stay tuned to your inbox for details on an upcoming webinar that will address the multitude of recent legislative changes impacting our long-term care community. 
In our court case analyses, we have a good discussion from a trial court addressing pressure sore injury claims made pursuant to Public Health Law § 2801-d.  The trial court rejected the plaintiff’s argument that the standard for a punitive damages award provided by this statute is lower than the common-law standard, and also held that the doctrine of res ipsa loquitur cannot be used to support this statutory claim. We also have two lack of informed consent decisions this month, both from the Second Department with opposite results - it is important to remember the standard for defending these claims, proving once again that the devil is in the details.  To establish a cause of action for malpractice based on lack of informed consent, plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury.  The courts are leery of generic consent forms and are looking for detailed explanations on the risks and alternatives, buttressed by testimony confirming this understanding. 
In other legislative news, New York has now legalized recreational-use marijuana with the passage of the Marijuana Regulation & Taxation Act (MRTA).  Marijuana production, distribution, and use will be regulated like alcohol and tobacco under the supervision of the New Your State Liquor Authority.  The formation of a specialty practice group is already underway with news and guidance for employers
As I am very much eager to return to the courtroom, there is good news and bad news with respect to our courts re-opening.  Trials are resuming on a limited basis, however criminal trials are taking priority, courtroom availability is low due to Covid protocols, and civil cases are few and far between.  While there were almost no trials in 2020, I do want to congratulate my talented colleagues who were featured in The Harmonie Group’s “2020 Significant Cases” publication:

  • Putative class action dismissed against insurance company in an action to collect funds allegedly owed under the Medicare Secondary Payer Act – Michael F. Perley and Amber E. Storr
  • Defense verdict in Labor Labor 240(1) "Falling Worker" trial – V. Christopher Potenza
  • Professional liability suit dismissed against landscape architect – Andrea Schillaci and Katherine L. Wood

We are hopeful for not just a trial, but a victory in 2021!


Your COVID-19 Resource Center: Legal Updates Regarding the Coronavirus

Our teams are hard at work keeping you updated on the latest New York State and Federal updates concerning the coronavirus. Our Resource Center compiles all of the information that could affect you and your business during this pandemic.



Latest News & Developments


New York Budget Impacts Nursing Homes
As part of its recent budget, New York has enacted the new Section 2828 of the Public Health Law, effective January 1, 2022. The law requires that:

  • Not less than 70% of nursing home revenues shall be spent on direct resident care costs;
  • 40% of the nursing home revenues must be spent on staff who work directly with patients (‘resident-facing staff’), which is included in amounts spent on direct care costs; and
  • Nursing home profits are limited to not more than 5%, and profit in excess of this threshold shall be turned over to the Department of Health. This profit cap applies to the difference between total revenues and all operating and non-operating expenses.

Direct resident care is defined to include non-revenue support services (e.g., maintenance, laundry and food service), ancillary services (e.g., laboratory and pharmacy services), and programs directly serving residents. Expenses that are explicitly excluded include administrative costs, capital costs, debt service, taxes (other than sales or payroll taxes), capital depreciation, rent and leases, and fiscal services.
Specifically exempted from the new law are nursing homes that provide certain specialized services, including behavioral intervention and neurodegenerative services. Failure to comply with the requirements of the new law will result in monetary penalties, Medicaid deductions, offsets, or lawsuits.
New Jersey and Massachusetts are two states that already require long-term care facilities to invest a majority of their revenue to direct care, with New Jersey requiring 90% to be spent on direct care costs.
State Passes Visitation Law for Nursing Homes
Following the passage of federal guidelines increasing nursing home visitation last month, New York lawmakers have signed into law a system of personal and compassionate caregiving visitation able to withstand future pandemics.
The new law expands the definition of “compassionate care visitation” from end-of-life situations to any cases where physical, emotional, or mental wellbeing require needed attentions, and allows residents or nursing homes or adult care facilities to designate caregivers, such as family members or friends, to assist them. Only caregivers complying with appropriate safety and screening procedures will be admitted to facilities, but they will be admitted even when general visitation has been suspended.
Final Passage Expected for Staffing Requirements Bill
Final passage is scheduled next week for the Nursing Home Staffing Levels Bill that will require nursing home facilities in the state to have enough staff to provide each resident at least three and a half hours of direct care each day. Two-thirds of the mandated hours of care must be provided by a certified nurse aide, while about an hour would have to involve a licensed nurse.
If passed as expected, the bill will take effect in January 2022. Nursing homes found to have violated the law will face a civil penalty by the state Department of Health.
Concerns have been raised by some lawmakers about the financial impact the legislation could have on some facilities, particularly nonprofit entities with limited revenue options. The size of the state’s workforce may also present a challenge to the mandate; however the bill gives some flexibility to facilities located in an area with a labor supply shortage.
State Requires Nursing Home Facilities to Offer Vaccine to Staff
Faced with lagging COVID-19 vaccinations among nursing home staff in New York, the state ordered operators of those facilities to offer the vaccine to their employees within fourteen days. Less than 60% of nursing home employees have received at least one dose of the vaccine, compared with more than 80% of the state’s healthcare workers.
The new guidance requires facilities to offer all consenting, unvaccinated personnel and residents an opportunity to receive a dose, and new hires must be offered the vaccine within fourteen days also. Signs must be posted throughout the facility, including at points of entry and exit reminding personnel and residents that the facility offers vaccination. Both staff and residents who opt out must sign paperwork acknowledging that they are declining. Nursing homes which fail to comply may be fined up to $2,000.


Analysis of Recent Court Decisions


March 25, 2021           Gilus v Palm Gardens Care Ctr. LLC
Supreme Court, Kings County
Trial court affirms that Public Health Law § 2801-d sets a “high bar” for the recovery of punitive damages and that res ipsa cannot be used to establish a claim under this statute.
The estate of the decedent plaintiff brought claims for negligence, violation of Public Health Law § 2801-d relating to health care facilities and related regulations, and gross negligence entitling decedent to punitive damages pursuant to Public Health Law § 2801-d, based on allegations that the decedent allegedly sustained decubitus ulcers (pressure ulcers or bedsores) due to, among other factors, defendant's failure to properly assess decedent's condition, failure to adequately care and treat decedent, including failing to move decedent, hydrate decedent, and treat the ulcers.
In moving for summary judgment, the defendant presented evidence that decedent was admitted to the facility with compromised skin integrity, comorbidities and multiple risk factors for developing pressure ulcers, and that the worsening of those ulcers was unavoidable despite appropriate care from defendant facility.  Plaintiff was able to create a question of fact to defeat summary judgment through expert evidence that the decedent was incorrectly assessed as a mild risk for the development of pressure ulcers in violation of 42 CFR § 483.25 (b) (1), and that as a result of this improper assessment, decedent was not provided with proper interventions and basic preventive measures designed to prevent the development of pressure ulcers and turning and positioning decedent pursuant to the state and federal regulations.
What makes this case interesting however is the court’s discussion of the punitive damages claim and plaintiff’s attempt to rely on the doctrine of res ipsa loquitor.  In addressing the motion to dismiss the punitive damages claim, plaintiff argued that punitive damages are not only expressly allowed under Public Health Law § 2801-d (2), but that the standard for obtaining punitive damages is lower under the statute than under common law.  To the contrary, the court held that the language of section Public Health Law § 2801-d (2) sets a “high bar for the recovery of punitive damages.” Relying on a recent Court of Appeals decision (Chauca v Abraham, 30 NY3d 325 [2017]), which addressed the standard for the recovery of punitive damages under a statute with similar language, the court affirmed that a mere statutory violation would not suffice and that punitive damages are generally intended to address “gross misbehavior” and  “may only be awarded for exceptional misconduct which transgresses mere negligence.”
While the motion was pending, plaintiff withdrew the claim for negligence and intended to proceed only with the claims premised on Public Health Law § 2801-d, which provides for the imposition of attorneys’ fees. Plaintiff sought to prove the claim using the doctrine of res ipsa loquitur, a rule of circumstantial evidence that allows a factfinder to infer negligence where the actual specific cause of an accident is unknown. Since plaintiff has withdrawn his negligence claim, plaintiff cannot use the doctrine of res ipsa loquitur to infer the existence of negligence, as the remaining claims are statutory.
March 31, 2021                       Pirri-Loan v Pearl
Appellate Court, Second Department
Lack of informed consent claim dismissed based on the parties' deposition testimonies and the plaintiff's signature on detailed consent form.
Plaintiff brought a claim for medical malpractice and lack of informed consent against the defendant gynecologic oncologist arising from a hysterectomy and related procedure.   In moving for summary judgment, the defendant’s expert specifically rebutted each allegation made in the plaintiffs' bills of particulars and opined that the surgery did not depart from good and accepted standards of medical practice and was not a proximate cause of the injured plaintiff's injuries.  In opposition, the affirmation of the plaintiffs' expert failed to raise a triable issue of fact because the affirmation was conclusory and speculative, and failed to address the specific assertions made by the defendant's expert.   
The court also dismissed plaintiff’s claim based on lack of informed consent.  While the signing of a generic consent form by the plaintiff does not establish that a defendant is entitled to summary judgment, a defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form after being apprised of alternatives and foreseeable risks, by demonstrating that a reasonably prudent person in the plaintiff's position would not have declined to undergo the surgery, or by demonstrating that the actual procedure performed for which there was no informed consent was not a proximate cause of the injury. 
Here, the defendant established his prima facie entitlement to judgment as a matter of law as to the alleged lack of informed consent by submitting an expert affirmation, the parties' deposition testimonies, and the injured plaintiff's signed consent form, and in opposition, the plaintiffs' expert affirmation failed to raise a triable issue of fact.
April 14, 2021             Friedberg v Rodeo
Appellate Division, Second Department
Generic consent form leads to issue of fact on claim of lack of informed consent.
The plaintiff sought to recover damages for medical malpractice and lack of informed consent, alleging that a retained metal fragment from a knee surgery performed caused her to suffer a foot drop. The court found an issue of fact on the malpractice claim as defendant claimed that microscopic metallic residue was an ordinary result of the surgical procedure, while plaintiff’s expert opined that the injury was caused by a macroscopic piece of metal that was left in the plaintiff's knee.
As for the lack of informed consent claim, plaintiff raised a triable issue of fact through the deposition testimony of the parties and the generic consent form signed by the plaintiff revealed a factual dispute as to whether defendant failed to disclose reasonably foreseeable risks associated with the treatment that a reasonable medical practitioner would have disclosed in the same circumstances.



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