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Kash v. Jewish Home and Infirmary of Rochester

February 11, 2009

GERTRUDE KASH, PLAINTIFF-APPELLANT,
v.
JEWISH HOME AND INFIRMARY OF ROCHESTER, N.Y., INC., JEWISH HEALTH CARE SYSTEM OF ROCHESTER, INC., AND LARS-GORAN LARSSON, M.D., DEFENDANTS-RESPONDENTS.



Appeal from an order of the Supreme Court, Monroe County (David Michael Barry, J.), entered November 26, 2007 in a medical malpractice action. The order denied the motion of plaintiff for leave to amend the complaint by adding a cause of action under Public Health Law § 2801-d.

The opinion of the court was delivered by: Pine, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PINE, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is reversed on the law without costs and the motion is granted upon condition that plaintiff shall serve the proposed amended complaint within 20 days of service of the order of this Court with notice of entry.

OPINION

I.

Plaintiff commenced this action seeking damages for injuries she sustained as the result of defendants' alleged medical malpractice. Several months after commencing the action, plaintiff moved for leave to amend the complaint by adding a separate cause of action under Public Health Law § 2801-d. For the reasons that follow, we conclude that Supreme Court erred in denying the motion.

II.

Public Health Law § 2801-d was enacted in 1975 and provides in pertinent part:

"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 . . . 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" (emphasis added).

The statute further provides that any damages recovered by a patient "shall be exempt for purposes of determining initial or continuing eligibility for [Medicaid]" (§ 2801-d [5]). Such significant relief is not available in a traditional tort cause of action. Furthermore, both punitive damages and attorneys' fees may be awarded in a section 2801-d cause of action (see § 2801-d [2], [6]).

III.

This Court first addressed Public Health Law § 2801-d in 1995 in Goldberg v Plaza Nursing Home Comp. (222 AD2d 1082), a case in which the plaintiff asserted traditional tort causes of action including wrongful death, as well as a cause of action under section 2801-d. Relying exclusively on the legislative history of the statute, we concluded that "it is unlikely that the Legislature envisioned extension of the principle of strict liability to residential health care facilities for injuries and damages that are traditionally the subject of tort liability" (id. at 1084; see also Begandy v Richardson, 134 Misc 2d 357, 360-361). We further stated that "the purpose [of the statute] was not to create a new personal injury cause of action based on negligence when that remedy already existed" (Goldberg, 222 AD2d at 1084). Thus, because the plaintiff "possessed the right to bring a[n] . . . action predicated upon [the] defendant's negligence" (id.), we granted the defendant nursing home's motion seeking summary judgment dismissing the section 2801-d cause of action (see id. at 1083-1084).

We next addressed Public Health Law ยง 2801-d in 2002, when we "decline[d] to apply the reasoning set forth in Goldberg" (Doe v Westfall Health Care Ctr., 303 AD2d 102, 109). We permitted the plaintiff to assert a section 2801-d cause of action despite the fact that the plaintiff also asserted traditional tort causes of action (see id. at 109-112). In Doe, the plaintiff's decedent had been raped by an employee of the defendant nursing home (see id. at 104). As a result of the rape, she became pregnant and gave birth to a baby boy (see id.). The decedent later died from unrelated causes, and her mother, individually and as executor of her estate, commenced the action asserting, inter alia, traditional tort causes of action and a cause of action under section 2801-d (see id. at 104-105). Relying on the clear language of section 2801-d (4), we concluded that the plaintiff in Doe was entitled to assert both the section 2801-d cause of action and the traditional tort causes of action because "the Legislature ha[d] explicitly expressed its intent to add to the available tort remedies" (id. at 112). We noted, however, that the rape of the decedent was "precisely the sort of conduct that [section 2801-d] was designed to target[] but [that] recovery for ...


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