(Photo: Shutterstock.com) Cognitive Awareness as a Prerequisite for Damages Under PHL 2801-d
New York Public Health Law §2801-d provides a private cause of action for nursing home residents injured as a result of any deprivation of their rights that cause an injury. This article addresses the question of whether a PHL 2801-d claimant must demonstrate some level of cognitive awareness that he or she was deprived of the right as a prerequisite to recover noneconomic damages. The First and Third Departments of the Appellate Division split on this issue in decisions handed down in 2021. The First Department answered "yes," and the Third Department "no."
May 03, 2022 at 10:00 AM
8 minute read
Horrific accounts of neglect and abuse of New York nursing home residents prompted the enactment of a series of laws, including Public Health Law §§2801-d and 2803-c, in 1975. The statutes established a private right of action allowing nursing home patients to sue to recover damages caused by the deprivation of statutorily defined rights or benefits. PHL §2801-d also permits recovery of punitive damages in cases of willful or reckless disregard of the lawful rights of the patient and gives courts discretion to award attorney fees to plaintiff. Regulations implementing the legislation are contained in 10 NYCRR Part 415.
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