NY Pub Health L § 2801-D (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 2801-D - Private Actions by Patients of Residential Health Care Facilities.

§  2801-d.  Private  actions  by  patients  of residential health care   facilities. 1. Any residential health care facility  that  deprives  any   patient  of  said  facility  of  any  right  or  benefit, as hereinafter   defined, shall be liable to said patient  for  injuries  suffered  as  a   result of said deprivation, except as hereinafter provided. For purposes   of  this  section  a  "right  or  benefit" of a patient of a residential   health care  facility  shall  mean  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,  where   noncompliance  by  said  facility  with  such  statute,  code,  rule  or   regulation   has  not  been  expressly  authorized  by  the  appropriate   governmental  authority.  No  person  who  pleads  and  proves,  as   an   affirmative  defense,  that  the  facility exercised all care reasonably   necessary to prevent and limit the  deprivation  and  injury  for  which   liability  is  asserted  shall  be  liable  under  this section. For the   purposes of this section, "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.2.  Upon  a  finding  that  a  patient has been deprived of a right or   benefit and that said patient has been  injured  as  a  result  of  said   deprivation,  and  unless there is a finding that the facility exercised   all care reasonably necessary to prevent and limit the  deprivation  and   injury  to  the  patient,  compensatory  damages shall be assessed in an   amount sufficient to compensate such patient for such injury, but in  no   event  less  than  twenty-five  percent of the daily per-patient rate of   payment established for  the  residential  health  care  facility  under   section  twenty-eight hundred seven of this article or, in the case of a   residential health care facility not having such  an  established  rate,   the  average daily total charges per patient for said facility, for each   day that such injury exists. In addition, 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.3.  A  patient residing in a residential health care facility may also   maintain an action pursuant to  this  section  for  any  other  type  of   relief, including injunctive and declaratory relief, permitted by law.4. Any damages recoverable pursuant to this section, including minimum   damages as provided by subdivision two of this section, may be recovered   in  any  action  which  a  court  may authorize to be brought as a class   action pursuant to article nine of the civil practice law and rules. The   remedies provided in this section are in addition to and cumulative with   any other remedies available to a patient, at law or  in  equity  or  by   administrative  proceedings, including tort causes of action, and may be   granted regardless of whether such other remedies are available  or  are   sought. A violation of subdivision three of section twenty-eight hundred   three-c  of  this  article  is not a prerequisite for a claim under this   section. Exhaustion of any available administrative remedies  shall  not   be required prior to commencement of suit hereunder.5.  The  amount  of  any  damages recovered by a patient, in an action   brought pursuant to  this  section  shall  be  exempt  for  purposes  of   determining  initial  or  continuing  eligibility for medical assistance   under title eleven of article five of the social services law and  shall   neither  be  taken  into consideration nor required to be applied toward   the payment or part payment of the cost  of  medical  care  or  services   available under said title eleven.6.  If 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.7. Any waiver by a patient or his 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.8. 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.9. No insurance premium or part thereof paid by any residential health   care   facility  which  is  attributable  solely  to  insurance  against   liability pursuant to this section shall be allowed  as  a  reimbursable   cost  for  purposes  of  any  proposed  rate  schedule  for payments for   hospital  or  health-related  service  which  the   commissioner   shall   determine  and certify pursuant to section twenty-eight hundred seven of   this chapter.10.  a.  No  person  shall  discriminate  against  any  patient  of  a   residential  health care facility because such patient, or the patient's   legal representative, has brought or caused to  be  brought  any  action   pursuant  to  this  section,  or  against  any  patient or employee of a   residential health care facility because such patient  or  employee  has   given  or  provided or is to give or provide testimony or other evidence   for purposes of such action.b. Any patient who has reason to believe that he or she may have  been   discriminated  against  in  violation  of  this  subdivision may, within   thirty days after such alleged violation occurs, file a  complaint  with   the commissioner. The commissioner shall investigate any such complaint,   and  shall,  if  such  complaint  is  deemed meritorious, serve upon the   administrator  of  the  subject  facility,  in   his   capacity   as   a   representative  of  the  facility,  either  by  personal  service  or by   certified mail addressed to the administrator in care of  the  facility,   return  receipt  requested,  a  complaint  stating  the substance of the   alleged discrimination with reasonable particularity. A hearing shall be   conducted in accordance with section twelve-a  of  this  chapter  within   thirty  days of the service of such complaint. The hearing officer shall   make a report of his findings to the commissioner, who, if he determines   that a violation of this subdivision has occurred,  may  grant  whatever   relief  is necessary and appropriate to remedy the violation, including,   but not limited to readmittance of patients wrongfully  discharged.  Any   such order of the commissioner shall be appealable by a proceeding under   article seventy-eight of the civil practice law and rules.c.  Whenever  the commissioner has issued an order as provided in this   subdivision he may apply to any court of competent jurisdiction for  the   enforcement of such order.d.  Any  action  taken  by  the  commissioner  in  accordance with the   provisions of this subdivision shall not be exclusive, and may be  taken   in  conjunction  with  an  action for a civil penalty for a violation of   paragraph a of this subdivision, or any private civil action brought  by   an injured party, or both.e. Any employee who has reason to believe that he or she may have been   discriminated  against  in  violation  of  this  subdivision may bring a   proceeding in accordance with the provisions of article fifteen  of  the   executive law.