Evaluating Medical Malpractice and Nursing Home Claims in New York
Medical malpractice cases are particularly difficult because of the enormous cost involved. A medical malpractice case has to be thoroughly evaluated prior to filing and serving a summons and complaint. Normally, the attorney must collect all pertinent medical records, and then have those medical records reviewed by an expert. After consulting with that expert, the plaintiff must file a separate affidavit of merit with the summons and complaint and serve this affidavit on the defendant physician alleging that the case was reviewed. The affidavit must allege that there is a doctor who believes that the defendant doctor has deviated from acceptable standards of care. See CPLR § 3012-a.
In the simplest of facts, this can easily turn into a $10,000 expense just to evaluate a case properly. At this point, there is no guarantee that there will even be a viable case. However, after having medical records evaluated by two different experts, it is not uncommon for the result to show that the standard of care was met. So despite personal beliefs, there may be no lawsuit.
The second consideration for most attorneys is the success rate. The percentage of successful medical malpractice verdicts is less than 40%. Many seasoned attorneys believe there is a jury bias in favor of physicians. These factors weigh heavily before an attorney will accept a case for evaluation.
Many attorneys who do not consider evaluating a medical malpractice case in which the damages are bed sores might still find an alternative theory of recovery under statutory law.
Public Health Law § 2801-d Statutory Claims
Public Health Law § 2801-d provides that the facility or patient of a residential health care facility who suffers an injury as a result of a deprivation of certain rights or benefits shall have a cause of action against the facility for injuries suffered. Liability is based on a violation of rights the statute protects.
See Schwartz v. Partridge, 179 A.D.3d 963, 117 N.Y.S.3d 300 (2d Dept. 2020); Cornell v. Monroe, 158 A.D.3d 1151, 70 N.Y.S.3d 646 (4th Dept. 2018); Novick v. South Nassau Communities Hosp., 136 A.D.3d 999, 1001, 26 N.Y.S.3d 182 (2d Dept. 2016).
The statute contemplates an injury or deprivation caused by the patient’s rights conferred by contract, statute, regulation, or rule. Specifically, the rights protected by the statute are defined as any right created for the patient’s well-being by any terms of a contract, state statute, rule, regulation, or applicable federal statute, rule, or regulation. See Public Health Law § 2801-d(1).
A facility is excused from compliance with a rule or regulation only where the facility has been expressly authorized to do so by the appropriate governmental authority. See Public Health Law § 2801-d(1).
Applicable Regulations: Pressure Sores (10 NYCRR § 415.12)
A regulation passed under the Public Health Law covers bed sores specifically. Under 10 NYCRR § 415.12(c) Pressure Sores, based on the comprehensive assessment of a resident, the facility shall ensure that:
- 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 despite every reasonable effort to prevent them; and
- A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.
A violation of this regulation can be the basis for a claim under the Public Health Law. See Hebrew Home for Aged v. Riverdale, 178 A.D.2d 753, 577 N.Y.S.2d 450 (1st Dept. 1992).
Damages Available Under PHL § 2801-d
A successful plaintiff is entitled to an award of compensatory damages, which shall be no less than 25% of the daily per-patient rate established for the residential health care facility pursuant to Public Health Law § 2807, or $15 per day, whichever is greater. See Public Health Law § 2801-d(2).
For purposes of Public Health Law § 2801-d, “injury” shall include, but is not limited to, physical harm, emotional harm, death to a patient, and financial loss to a patient. See Public Health Law § 2801-d(1).
Proving a case ultimately requires expert testimony. An expert must testify that the bed sores were avoidable with proper medical care, and if proper medical care was not provided once the bed sores sustained, that the level of care was inappropriate.
By James Santner, Esq.
Disclaimer & Legal Consultation: Depending upon the duration and nature of the bed sores, a patient or their family may have a viable claim under the Public Health Law. If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.