§ 2801-D — Private actions by patients of residential health care facilities

§ 2801-d. Private actions by patients of residential health care\nfacilities. 1. Any residential health care facility that deprives any\npatient of said facility of any right or benefit, as hereinafter\ndefined, shall be liable to said patient for injuries suffered as a\nresult of said deprivation, except as hereinafter provided. For purposes\nof this section a "right or benefit" of a patient of a residential\nhealth care facility shall mean any right or benefit created or\nestablished for the well-being of the patient by the terms of any\ncontract, by any state statute, code, rule or regulation or by any\napplicable federal statute, code, rule or regulation, where\nnoncompliance by said facility with such statute, code, rule or\nregulation has not been expressly authorized by the appropriate\ngovernmental authority. No person who pleads and proves, as an\naffirmative defense, that the facility exercised all care reasonably\nnecessary to prevent and limit the deprivation and injury for which\nliability is asserted shall be liable under this section. For the\npurposes of this section, "injury" shall include, but not be limited to,\nphysical harm to a patient; emotional harm to a patient; death of a\npatient; and financial loss to a patient.\n 2. Upon a finding that a patient has been deprived of a right or\nbenefit and that said patient has been injured as a result of said\ndeprivation, and unless there is a finding that the facility exercised\nall care reasonably necessary to prevent and limit the deprivation and\ninjury to the patient, compensatory damages shall be assessed in an\namount sufficient to compensate such patient for such injury, but in no\nevent less than twenty-five percent of the daily per-patient rate of\npayment established for the residential health care facility under\nsection twenty-eight hundred seven of this article or, in the case of a\nresidential health care facility not having such an established rate,\nthe average daily total charges per patient for said facility, for each\nday that such injury exists. In addition, where the deprivation of any\nsuch right or benefit is found to have been willful or in reckless\ndisregard of the lawful rights of the patient, punitive damages may be\nassessed.\n 3. A patient residing in a residential health care facility may also\nmaintain an action pursuant to this section for any other type of\nrelief, including injunctive and declaratory relief, permitted by law.\n 4. Any damages recoverable pursuant to this section, including minimum\ndamages as provided by subdivision two of this section, may be recovered\nin any action which a court may authorize to be brought as a class\naction pursuant to article nine of the civil practice law and rules. The\nremedies provided in this section are in addition to and cumulative with\nany other remedies available to a patient, the patient's legal\nrepresentative, or the patient's estate at law or in equity or by\nadministrative proceedings, including tort causes of action, and may be\ngranted regardless of whether such other remedies are available or are\nsought. A violation of subdivision three of section twenty-eight hundred\nthree-c of this article is not a prerequisite for a claim under this\nsection. Exhaustion of any available administrative remedies shall not\nbe required prior to commencement of suit hereunder.\n 4-a. Under this section, any action that may be brought, and any\nrelief that may be sought or received, may be brought, sought or\nreceived in an appropriate case by the patient's legal representative or\nthe patient's estate.\n 5. The amount of any damages recovered by a patient, in an action\nbrought pursuant to this section shall be exempt for purposes of\ndetermining initial or continuing eligibility for medical assistance\nunder title eleven of article five of the social services law and shall\nneither be taken into consideration nor required to be applied toward\nthe payment or part payment of the cost of medical care or services\navailable under said title eleven.\n 6. If judgment in an action maintained under this section is rendered\nin favor of the plaintiff, in its discretion the court may, if justice\nrequires, award attorneys' fees to the plaintiff based on the reasonable\nvalue of legal services rendered and payable by the defendant.\n 7. Any waiver by a patient or his legal representative of the right to\ncommence an action under this section, whether oral or in writing, shall\nbe null and void and without legal force or effect.\n 8. Any party to an action brought under this section shall be entitled\nto a trial by jury and any waiver of the right to a trial by a jury,\nwhether oral or in writing, prior to the commencement of an action,\nshall be null and void, and without legal force or effect.\n 9. No insurance premium or part thereof paid by any residential health\ncare facility which is attributable solely to insurance against\nliability pursuant to this section shall be allowed as a reimbursable\ncost for purposes of any proposed rate schedule for payments for\nhospital or health-related service which the commissioner shall\ndetermine and certify pursuant to section twenty-eight hundred seven of\nthis chapter.\n 10. a. No person shall discriminate against any patient of a\nresidential health care facility because such patient, or the patient's\nlegal representative, has brought or caused to be brought any action\npursuant to this section, or against any patient or employee of a\nresidential health care facility because such patient or employee has\ngiven or provided or is to give or provide testimony or other evidence\nfor purposes of such action.\n b. Any patient who has reason to believe that he or she may have been\ndiscriminated against in violation of this subdivision may, within\nthirty days after such alleged violation occurs, file a complaint with\nthe commissioner. The commissioner shall investigate any such complaint,\nand shall, if such complaint is deemed meritorious, serve upon the\nadministrator of the subject facility, in his capacity as a\nrepresentative of the facility, either by personal service or by\ncertified mail addressed to the administrator in care of the facility,\nreturn receipt requested, a complaint stating the substance of the\nalleged discrimination with reasonable particularity. A hearing shall be\nconducted in accordance with section twelve-a of this chapter within\nthirty days of the service of such complaint. The hearing officer shall\nmake a report of his findings to the commissioner, who, if he determines\nthat a violation of this subdivision has occurred, may grant whatever\nrelief is necessary and appropriate to remedy the violation, including,\nbut not limited to readmittance of patients wrongfully discharged. Any\nsuch order of the commissioner shall be appealable by a proceeding under\narticle seventy-eight of the civil practice law and rules.\n c. Whenever the commissioner has issued an order as provided in this\nsubdivision he may apply to any court of competent jurisdiction for the\nenforcement of such order.\n d. Any action taken by the commissioner in accordance with the\nprovisions of this subdivision shall not be exclusive, and may be taken\nin conjunction with an action for a civil penalty for a violation of\nparagraph a of this subdivision, or any private civil action brought by\nan injured party, or both.\n e. Any employee who has reason to believe that he or she may have been\ndiscriminated against in violation of this subdivision may bring a\nproceeding in accordance with the provisions of article fifteen of the\nexecutive law.\n