Nursing homes were always subject to common law claims of negligence and malpractice involving anything from falls to allegations of failure to provide proper or adequate care. The Public Health Law was enacted to permit a monetary recovery, based on the rates charged by a nursing home, and possible punitive damages, for violations of rights or benefits protected by the statute. This article addresses the potential for confusion in having a trial where the jury considers alleged Public Health Law violations with claims of negligence or malpractice.
The New York State Department of Health guidelines set forth the right to privacy in treatment and care of personal needs, activities, schedules and communication or access to people or services outside the nursing home. Nursing homes are required to provide safe, clean, comfortable rooms, protection from any kind of harsh or abusive treatment, and privacy in communications and associations. However, apart from these rights and benefits, it can also be asserted that any lack of care, including one that would ordinarily give rise to a common law negligence claim, is a violation of the statute. When the rights protected by common law are addressed at the same time as alleged violations of the Public Health Law, there is the potential for confusing a jury. In these circumstances, trying the claims together may prejudice the defense of the nursing homes.
Distinctions Between Claims
