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Serious Injuries Require
In the early 1970’s, there were many highly publicized cases of abuse in nursing homes and residential care facilities which prompted an investigation by the then Governor Hugh Carey. This investigation resulted in the enactment of New York State Public Health Law Section 280.1(b) which expressly created a private right of action in favor of nursing home residents in order to enforce their rights to adequate care and treatment, providing them with the ability to sue for damages and other relief.
Pursuant to the statute, a residential health care facility is liable to an individual for depriving that individual of any right or benefit created or established for the well-being of the resident or patient of a residential health care facility by terms of any contract, state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation. If there has been non-compliance by said facility with such statute, code, rule or regulation which can be shown and proven, then the residential facility or nursing home will be held liable and responsible under this available statutory cause of action unless the facility can show that it exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is being asserted pursuant to Section 2801-d of the Public Health Law.
This statutory remedy is available in addition to and cumulative with any other remedy available to a resident or patient under the law. In this regard, any attorney handling a nursing care neglect or abuse lawsuit should include other claims and causes of action relating to Common Law Negligence and/or medical malpractice if facts and circumstances give rise to same.
There are various regulations within the State of New York as set forth in the New York State Codes, Rules and Regulations Section 415.1, et seq. relating to promoting care for residents in a manner and environment that enhances each resident’s dignity and respect while a resident or patient at a facility. These regulations are comprehensive in terms of a list of rights and include under Section 415.3(c)(vii) which mandates that a resident be “free from verbal, sexual, mental, or physical abuse, corporal punishment and involuntary seclusion, and free from chemical and physical restraints except those restraints authorized in accordance with Section 415.4 of this Part.” Further, there are a number of regulations relating to minimum staffing requirements, quality of care, adequate supervision and assistive devices to prevent accident, proper record keeping and the need to provide comprehensive assessments and plans of care for residents and patients.
Additionally, there are a number of federal regulations under 42 CFR Section 483, et seq. which require the same or similar requirements as New York State law.
Therefore, there are a number of tools available in order to hold a nursing home or residential care facility liable through statutory negligence under the Public Health Law, Common Law Negligence and/or medical malpractice. Of course, if any negligent abuse, neglect or wrongful conduct resulted in a wrongful death, then a claim can be made pursuant to New York’s wrongful death law and statutes.
It is important to realize that all of these claims pursuant to statute, Common Law Negligence, medical malpractice and/or wrongful death law can all be brought together in one single proceeding. However, navigating through all of these laws, statutes, rules and regulations can be quite complex, thereby requiring thorough knowledge and experience of a qualified lawyer to prosecute a nursing home negligence and abuse lawsuit.
Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. have all of the necessary experience and knowledge concerning nursing home negligence and abuse cases and have successfully prosecuted and continue to prosecute these cases.
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