Approximately 1.5 million people reside in nursing homes across the United States. Many nursing homes are understaffed or have poorly trained staff or overworked staff. In the year 1987, Congress passed the Omnibus Budget Reconciliation Act of 1987 (OBRA, 1987) in part as a response to the decades of nursing homes being plagued with reports suggesting widespread and serious maltreatment of residents, including abuse, neglect, and theft of personal property.
We handle New York nursing home abuse, mistreatment, neglect, medical malpractice, and negligence cases, including but not limited to:
- Medication Error
- Physical Abuse
- Sexual Abuse
- Medical Neglect
New York Patient Abuse Reporting Law, Public Health Law Section 2803-d was enacted in 1977 to protect persons living in nursing homes from physical abuse, mistreatment, or neglect.
Under 42 CFR § 483.25, all nursing homes must provide a comprehensive assessment of all residents. Based on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident's choices.
NEW YORK NURSING HOME PHYSICAL ABUSE
A nursing home may be liable for money damages for physical injury and pain if its employee or staff causes willful infliction of injury, unreasonable confinement, intimidation, or punishment to your family or loved ones.
Nursing home staff must not engage in inappropriate physical contact with a resident of a residential health care facility while the resident is under the supervision of the facility, which harms or is likely to harm the resident. Inappropriate physical contact includes, but is not limited to, striking, punching, kicking, shoving, bumping, and sexual molestation.
NEW YORK NURSING HOME MISTREATMENT
New York nursing homes must provide appropriate medication dosage to their residents. A nursing home must not use isolation, physical force, or chemical restraints on a resident of residential health care while the resident is under the supervision of the facility.
A nursing home may be liable for money damages because of mistreatment, such as inappropriate use of isolation, medications, physical or chemical restraints on your family or loved one in a residential health care facility while the resident is under the supervision of the facility. See Public Health Law § 2803-c(3)(h).
NEW YORK NURSING HOME NEGLECT
New York nursing homes must provide their residents with timely, consistent, safe, adequate, and appropriate services, treatment, and/or care, including, but not limited to: nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living.
A nursing home may be liable for money damages if your family or loved one is neglected or injured because its staff failed to:
- Carry out physician orders, medication omission, treatment omission, or failed to follow the care plan or provide emergency services;
- Adequately supervise whereabouts and activities of residents; or
- Provide adequate hydration and nutrition.
See 10 NYCRR § 415.12(a)(1); See also 42 CFR § 483.25(j).
NEW YORK NURSING HOME PRESSURE ULCER SORE
Under 10 NYCRR § 415.12(a)(1), all nursing homes must ensure that your family member receives care consistent with professional standards of practice to prevent pressure ulcers and does not develop pressure ulcers unless the individual's clinical condition demonstrates that they were unavoidable. Furthermore, the nursing home must ensure that your family member with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing.
See 10 NYCRR § 415.12(a)(1); See also 42 CFR § 483.25(c).
Free Legal Consultation
If you or a loved one have been injured as a result of nursing home abuse, neglect, or malpractice, you must take immediate action to protect your legal rights. Call home abuse and neglect lawyer in New York Bryan J. Hutchinson at (718) 671-0900 for a free consultation.
FREQUENTLY ASKED QUESTIONS REGARDING NURSING HOME ABUSE, NEGLECT, AND MALPRACTICE
What is elder abuse?
According to the U.S. Department of Health & Human Services (HHS), Centers for Disease Control and Prevention elder abuse is “an intentional act, or failure to act, by a caregiver or another person in a relationship involving an expectation of trust that causes or creates a risk of harm to someone age 60 or older.
What are the rights of New York nursing home residents?
Under New York, Public Health Law § 2803-c(3), nursing home residents have the right to:
- dignity, respect, and a comfortable living environment;
- quality of care and treatment without discrimination;
- freedom of choice to make your own, independent decisions;
- be informed in writing about services and fees before you enter the nursing home;
- the safeguard of your property and money;
- appeal a transfer or discharge with the New York State Department of Health;
- privacy in communications;
- choose your own schedule, activities and other preferences that are important to you;
- receive visitors of your choosing at the time of your choosing;
- an easy-to-use and responsive complaint procedure;
- be free from abuse including verbal, sexual, mental and physical abuse;
- be free from restraints; and
- exercise all of your rights without fear of reprisals.
See Public Health Law § 2803-c(3)(e); 10 NYCRR § 415; See also 42 CFR § 483.1.
What are the responsibilities of New York nursing homes for their residents?
Under New York law nursing homes must:
- ensure that you are treated as an individual and encourage you to participate in programs and services of your choice;
- provide you with safe, clean, and comfortable rooms and surroundings;
- protect you from any kind of harsh and abusive treatment; and
- provide you privacy in communicating and associating with people of your choice.
See NYCRR § 415.12(a)(1); See also 42 CFR § 483.25(a)(1).
How do I know if a New York nursing home resident is being abused?
The definition of physical abuse is injury or harm to a person carried out with the intention of causing suffering, pain, or impairment. The Centers for Medicare and Medicaid Services and the Administration on Aging, in its instructions to long-term care ombudsmen, defines abuse as “the willful infliction of injury, unreasonable confinement, intimidation or cruel punishment with resulting physical harm, pain, or mental anguish or deprivation by a person, including a caregiver, of goods or services that are necessary to avoid physical harm, mental anguish, or mental illness.”
Physical abuse includes hitting, slapping, pushing, or striking with objects, improper use of physical or chemical restraints. Physical abuse also typically includes sexual abuse or nonconsensual sexual involvement of any kind, from rape to unwanted touching or indecent exposure.
How do I know if a New York nursing home resident is being neglected?
Neglect is thought of as including the refusal or failure of a caregiver to fulfill his or her obligations or duties to an older person, including providing any food, clothing, medicine, shelter, supervision, and medical care and services that a prudent person would deem essential for the well-being of another.
Nursing home Duty to Residence (Omnibus Budget Reconciliation Act of 1987 (OBRA, 1987)
The federal regulations implementing OBRA 1987 also specified long-term care facilities' responsibility to “develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents.
Your love one has the right to be free from verbal, sexual, physical, and mental abuse, including corporal punishment and involuntary seclusion, and limited use of physical restraints, and inappropriate use of psychotropic medications.
What rights do I have under New York Public Health Law for nursing home abuse or neglect?
New York Public Health Law § 2801-d(1) provides that any residential health care facility that deprives any patient of the facility of any right or benefit, shall be liable to the patient for injuries suffered, including but not limited to, physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient as a result of the deprivation.
What type of damages can I get for a claim brought under New York Public Health Law § 2801-d?
In addition to compensatory damages, New York Public Health Law § 2801-d(2) provides that where the deprivation of any such right or benefit is found to have been willful or in reckless disregard of the lawful rights of the patient, punitive damages may be assessed.
Is the agreement a patient signed when she entered a New York nursing home waiving her right to commence a lawsuit validly?
New York Public Health Law § 2801-d(7) provides that any waiver by a patient or her legal representative of the right to commence an action under this section, whether oral or in writing, shall be null and void and without legal force or effect.
Is the agreement a patient signed when she entered a New York nursing home waiving her right to trial by jury valid?
New York Public Health Law § 2801-d(8) provides that any party to an action brought under this section shall be entitled to a trial by jury and any waiver of the right to a trial by a jury, whether oral or in writing, prior to the commencement of an action, shall be null and void, and without legal force or effect.
Can a New York nursing home patient recovery attorney fees if she is successful in proving a nursing home deprived her of rights and benefits causing physical injury?
New York Public Health Law § 2801-d(6) provides that if the judgment in an action maintained under this section is rendered in favor of the plaintiff, in its discretion the court may, if justice requires, award attorneys' fees to the plaintiff based on the reasonable value of legal services rendered and payable by the defendant.
How much does it cost to hire your law firm?
Our law firm works exclusively on a contingency fee arrangement. That means that unlike an attorney that you have to pay hourly, we only get paid when and if we recover money in your case, and we take a percentage of what we win. If we recover money in your case, we will take a percentage of what we recover plus any money we had to spend to pursue your case, such as court fees, testifying expert fees, and fees to obtain medical records.
Free Legal Consultation
If you or a loved one have been injured as a result of nursing home abuse, neglect or malpractice you must take immediate action to protect your legal rights. Call Bronx nursing home abuse and neglect lawyer Bryan J. Hutchinson at (718) 671-0900 for a free confidential consultation.
What is my New York nursing home neglect or abuse case worth?
New York nursing home cases range in value from zero to millions. The value of each case depends on the facts and circumstances of each individual case. They include, how clear the liability is, the extent of the harm, the venue of your case, how sympathetic the plaintiff is, the solvency of the defendant, whether you want to settle your case or want to see it through trial, along with other factors.
What is the statute of limitation in New York for nursing home negligence?
New York CPLR § 214(5) provides a three-year statute of limitations for a nursing home abuse or neglect case.
What is the statute of limitation in New York for medical malpractice against a nursing home?
New York CPLR § 214-a provides:
- Two and a half years from the date of injury or from the end of continuous treatment during which the injury occurred.
- If a foreign object is discovered, the case must be filed one year from discovery.
What is the statute of limitation in New York for wrongful death against a nursing home?
NY Est. Powers & Trusts Law § 5-4.1 provides a two-years from the date of death statute of limitation for wrongful death against a nursing home.
What is the statute of limitation in New York against a nursing home for assault and battery?
New York CPLR § 215(3) provides a one-year statute of limitation to bring a case for assault and battery against a nursing home.
Are punitive damages available against a defendant in a New York nursing home abuse and neglect case?
Yes. Punitive damages are available under both the New York common law and New York Public Health Law § 2801-d(2) for wrongdoing that is voluntary and intentional or must have created a substantial risk of harm with a conscious disregard of or indifference to, that risk. See New York Public Health Law § 2801-d(2); See Lee v Health Force, 268 AD2d 564 (2d Dept 2000); Rey v Park View Nursing Home, Inc., 262 AD2d 624 (2d Dept 1999). However, very few plaintiffs can meet this very high standard to obtain compensation for punitive damages.
FREE LEGAL CONSULTATION
If you or a loved one have been injured as a result of nursing home abuse, neglect, or malpractice you must take immediate action to protect your legal rights. Call Bronx lawyer nursing home lawyer Bryan J. Hutchinson now at (718) 671-0900 for a free confidential consultation.