My mother is in a nursing home. She has had a difficult time adjusting. One thing that bothers me about this facility is the lack of staffing. As a result of staffing issues, I see that my mom has developed bed sores. Is there anything I can do to make a claim against the nursing home?

Cost of Evaluation Malpractice Cases

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. 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. (I recently accepted a case for evaluation that I was sure was a malpractice claim. However, after I had the medical records evaluated by two different experts, they both told me that the unfortunate result of the procedure was an acceptable medical risk. In short, my potential defendant did not deviate from acceptable medical standards. So despite my personal beliefs, there was 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 would not consider evaluating a medical malpractice case in which the damages are bed sores. However, there might be an alternative theory of recovery.

Public Health Law

Public Health Law § 2801-d provides the patient of a residential health care facility with a cause of action for injuries suffered as a result of the deprivation of certain rights or benefits. Liability is not based on a deviation from accepted standards as in a medical practice case. Liability is based on violation of rights the statute protects. Schwartz v Partridge, 179 AD3d 963, 117 NYS3d 300 (2d Dept 2020); Cornell v Monroe, 158 AD3d 1151, 70 NYS3d 646 (4th Dept 2018); Novick v South Nassau Communities Hosp., 136 AD3d 999, 1001, 26 NYS3d 182 (2d Dept 2016).

Liability under the statute contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, Schwartz v Partridge, 179 AD3d 963, 117 NYS3d 300 (2d Dept. 2020); Cornell v Monroe, 158 AD3d 1151, 70 NYS3d 646 (4th Dept 2018). Specifically, the “rights and benefits” protected by the statute are defined as “any right or benefit created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation,” Public Health Law § 2801-d .

A facility is excused from compliance with any such rule or regulation only where it has been expressly authorized to do so by the appropriate governmental authority. Public Health Law § 2801-d(1).

Applicable Regulation

A regulation (10 NYCRR 405.12) passed under the Public Health Law cover bed sores specifically. “(c) Pressure sores.
Based on the comprehensive assessment of a resident, the facility shall 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 despite every reasonable effort to prevent them; and (2) a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.” 10 NYCRR 415.12(c).

A violation of this regulation would be the basis for a claim under the Public Health Law. Zeides v Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178, 753 NYS2d 450 (1st Dept 2002).

Damages

A successful plaintiff is entitled to an award of compensatory damages, which shall in no event be less than twenty-five percent of the daily per-patient rate of payment established for the residential health care facility pursuant to Public Health Law § 2807 or, in the case of a facility not having such an established rate, the average daily total charges per patient for said facility, for each day that such injury exists. Public Health Law § 2801-d(2).

For purposes of Public Health Law § 2801-d, “ ‘injury’ shall include, but not be limited to, physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient,” Public Health Law § 2801-d(1).

Your mother’s case ultimately would require an expert. An expert would have to testify that the bed sores were avoidable with proper medical care. Furthermore, if your mother did not receive appropriate wound care once she had sustained the bed sores, then the expert would also have to testify that the level of care was not appropriate. There are some unreported settlements in which the injured elderly person had received a six figure sum.

Therefore, depending upon the duration and nature of the bed sores, your mother may have a claim under the Public Health Law.

By James Santner, Esq.

If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.