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An appellate panel in Albany has recognized a rarely — if ever — invoked provision of Public Health Law that permits class actions against nursing homes for depriving residents of basic necessities like adequate heat, edible food, privacy and socialization. The provision, Public Health Law � 2801-d, is a potential bonanza for plaintiffs attorneys because it includes counsel fees and provides for a potentially substantial minimum recovery — a base sum for each day the injury exists. This month, the Appellate Division, 3rd Department, allowed an attorney to amend his complaint to include � 2801-d, and reversed a trial court in granting class certification. “In my opinion, this is the first class action authorized against a nursing home pursuant to Public Health Law � 2801-d,” said David F. Kunz of DeGraff, Foy, Holt-Harris, Kunz & Devine in Albany. “We were unable to find any other reported class action cases. … We had to amend the complaint because we were initially unaware of the provision, as are apparently a lot of other people.” Fleming v. Barnwell Nursing Home and Health Facilities Inc., arose after Elizabeth Lagai died on Nov. 26, 1999. Lagai, a resident of the Barnwell Nursing Home in Valatie, Columbia County, died of septic shock, allegedly because she was neglected by the nursing home staff. Two months after her death, the New York State Department of Health issued a 24-page statement of deficiencies at the nursing home. The estate then brought an action against the home and Lagai’s physician alleging negligence, medical malpractice and wrongful death. Four months later, plaintiff’s counsel moved to amend the complaint to include a � 2801-d claim and to seek class certification. New York Supreme Court Justice John G. Connor approved the amendment but denied the class action. CLASS SHOULD BE CERTIFIED On appeal, the 3rd Department agreed that the complaint was properly amended to encompass � 2801-d. But the unanimous court, through Justice Anthony T. Kane, went further, saying the class of roughly 200 nursing home residents should be certified. Although Lagai’s estate must pursue the medical malpractice and negligence actions individually, it is now part of a large class of potential plaintiffs complaining of denial of basic human needs. The certification covers residents of the facility during Lagai’s one-year stay. “The thrust of this is that when a nursing home fails to provide its residents with the basic necessities and adequate living standards [residents] have a legal forum and a minimum basis for determining damages,” Kunz said. “If we can prove our case, there is a minimum damage award of 25 percent of the daily Medicaid payment for each day and for each resident of the nursing home who had their rights under � 2801-d violated.” Counsel for the defendants, Anthony Rotondi of Donohue, Sabo, Varley & Armstrong in Albany, said the � 2801-d remedy is one that had previously “fallen under the radar,” but with the 3rd Department’s decision could become a boiler-plate cause of action in nursing home cases. “There is a lot here to play with if you are a plaintiff’s attorney, and a lot of trouble that can be caused for institutions,” Rotondi said. “With the provision for attorney fees, I think you will see a lot of plaintiffs attorneys looking at a cause of action, and possibly a class action, under the Public Health Law,” he said. “As difficult as it may be to prevail on the [medical malpractice] action, it might be easier to maintain this type of action because you automatically have a question of fact. You are not going to get shut out on summary judgment.” Also on the panel were Presiding Justice Anthony V. Cardona and Justices Thomas E. Mercure, Anthony J. Carpinello and Robert S. Rose.

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