Papers reviewed: 1. Attorney Affidavit in Support of Motion in Limine of Latha Raghavan, Esq. together with Exhibits A – F attached thereto, sworn to November 22, 2019; 2. Memorandum of Law in Support of Defendants’ Motion in Limine of Latha Raghavan, Esq., dated November 22, 2019; 3. Affirmation in Opposition of Marie M. DuSault, Esq. together with Exhibit A attached thereto, dated November 26, 2019; 4. Plaintiff’s Trial Memorandum of Law in Opposition of Marie M. DuSault, Esq., dated November 26, 2019; and 5. Trial Memorandum in Reply and Further Support of Defendants’ Motion in Limine of Latha Raghavan, Esq. dated December 4, 2019. DECISION AND ORDER Bert Dwain Butler, Sr. (hereinafter decedent) was admitted to the Fort Hudson Nursing Center, Inc. (hereinafter the Nursing Home) — a residential health care facility providing health-related services as defined by Public Health Law §2801 (3) — in September 2013 with a history of atherosclerosis, type II diabetes mellitus, chronic obstructive pulmonary disease, osteoarthritis, benign prostatic hypertrophy, depression, previous cardiac pacemaker implantation, intestinal obstruction with constipation requiring bowel protocols complicated by his refusals to comply, and hemiplegia with left cerebral occlusion. Decedent suffered from aspiration pneumonia and sepsis beginning on March 14, 2014 and continuing for a period of four days, terminating upon his death on March 17, 2014 at the age of 75. Plaintiff — in her capacity as administratrix of decedent’s estate — commenced this action in February 2016. The first cause of action in the complaint alleges violations of Public Health Law §§2801-d and 2803-c and seeks punitive damages pursuant to Public Health Law §2801-d (2), as well as counsel fees pursuant to Public Health Law §2801-d (6). The second cause of action alleges negligence and gross negligence as the proximate cause of decedent’s injuries. The third cause of action seeks damages for conscious pain and suffering and the fourth cause of action seeks monetary damages for decedent’s funeral “and other expenses.” Discovery has been completed and the trial is scheduled to begin on August 3, 2020. Presently before the Court is defendants’ motion in limine for an Order (1) precluding plaintiff from presenting separate interrogatories on the verdict sheet with respect to decedent’s right to recover under Public Health Law §2801-d and plaintiff’s right to recover under the wrongful death and survivorship statutes (see EPTL 5-4.3 (a), 11-3.3[a]); (2) precluding plaintiff from presenting the claim for damages under Public Health Law §2801-d cumulatively with the other claims for damages; (3) dismissing the claim for punitive damages; and (4) dismissing the negligence cause of action because plaintiff’s expert sets forth a case for medical malpractice. At the outset, the relief requested in item Nos. (3) and (4) is denied as premature.1 The Court now turns to the relief requested in item Nos. (1) and (2), noting that the issues raised therein are novel and appear to challenge the longstanding jurisprudence in this State “that a decedent has no cause of action to recover for his or her own death” (Sand v. Chapin, 238 AD2d 862, 863 [1997]; see Liff v. Schildrout, 49 NY2d 622, 633 [1980]). As with all cases involving statutory interpretation, the Court begins its analysis by studying the plain language of the statute (see Matter of Suozzi v. Tax Appeals Trib. of the State of N.Y., 179 AD3d 1253, ___, 2020 NY Slip Op 00193, *2 [2020]; Matter of Wegmans Food Mkts., Inc. v. Tax Appeals Trib. of the State of N.Y., 33 NY3d 587, 605 [2019]). Public Health Law §2801-d, which was enacted in 1975, creates a private right of action in favor of a patient and against “[a]ny residential health care facility that deprives any patient in said facility of any right or benefit…. 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 terms of any contract, by any state statute, code, rule or regulation or any applicable federal statute, code, rule or regulation” (Public Health Law §2801-d [1]). To that end, “[t]he basis for liability under [Public Health Law §2801-d] ‘is neither deviation from accepted standards of medical practice nor breach of a duty of care. Rather, [the statute] contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule’” (Novick v. South Nassau Communities Hosp., 136 AD3d 999, 1001 [2016], quoting Zeides v. Hebrew Home for Aged at Riverdale, 300 AD2d 178, 179 [1st Dept 2002]; accord Henry v. Sunrise Manor Ctr. for Nursing & Rehabilitation, 147 AD3d 739, 741 [2017]; see Butler v. Shorefront Jewish Geriatric Ctr., Inc., 33 Misc 3d 686, 693 [Sup Ct, Kings County 2011]). Public Health Law §2801-d provides that an “‘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” (Public Health Law §2801-d [1] [emphasis added]). Significantly, the statute further provides that the “remedies provided in [the] section are in addition to and cumulative with any other remedies available to a patient, at law or in equity…including tort causes of action, and may be granted regardless of whether such other remedies are available or are sought” (Public Health Law §2801-d [1] [emphasis added]). Insofar as damages are concerned, Public Health Law §2801-d (2) provides that damages “shall be assessed in an amount sufficient to compensate [the] patient for [the] injury, but in no event less than [25 percent ] of the daily per-patient rate of payment established for the residential health care facility under [Public Health Law §2807]2 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.” Therefore, the plain language of Public Health Law §2801-d creates a separate right of recovery for decedent — a patient at the Nursing Home — with respect to the injuries he suffered, including death, as a result of the Nursing Home’s violation of any State or Federal statute, code, rule or regulation. Furthermore, the statute expressly provides that this right of recovery is “in addition to and cumulative with any other remedies available” (Public Health Law §2801-d [1]). The language of the statute thus suggests that (1) plaintiff is authorized to include separate interrogatories on the verdict sheet with respect to decedent’s right to recover under Public Health Law §2801-d and her right to recover under the wrongful death and survivorship statutes (see EPTL 5-4.3 (a), 11-3.3[a]); and (2) any damages awarded under Public Health Law §2801-d may be in addition to and cumulative with any damages awarded under the wrongful death and survivorship statutes. This conclusion is underscored by the legislative history of the statute, which is of course also relevant to the analysis. Indeed, while “‘[d]iscerning a statute’s purpose and intent begins with its language…, the legislative history of an enactment [is] also…relevant and is not to be ignored’” (Matter of Suozzi v. Tax Appeals Trib. of the State of N.Y., 2020 NY Slip Op 00193 at *2, quoting Matter of American Rock Salt Co. LLC v. Commissioner of Taxation & Fin. of the State of N.Y., 104 AD3d 12, 13 [2012] [internal quotation marks, brackets and citations omitted]). Of the several cases which have examined the legislative history of Public Health Law §2801-d, this Court finds Morisett v. Terence Cardinal Cooke Health Care Ctr. (8 Misc 3d 506 [Sup Ct, NY County 2005]) (hereinafter Morisett) to be most instructive. In Morisett, the beginnings of the statute were described in painstaking detail: “In January 1975 when Hugh Carey became Governor ‘the public’s confidence in the State’s ability to protect its most defenseless citizens, the aged and infirm, had been destroyed by a series of dramatic disclosures highlighting the abuses of nursing home care in their State’ (see Governor’s Mem approving L 1975, ch 658, 1975 McKinney’s Session Laws of NY, at 1764). The Governor then took immediate steps including the appointment of a special prosecutor to commence a statewide investigation into claims of unlawful activities by those operating nursing homes, the hiring of additional auditors to monitor the finances of nursing homes and the setting up of the Moreland Commission to investigate ‘a system which invites excessive private gain and apparent conflict of interests,’ and ‘recommend new laws and procedures to help those who depend on nursing homes…which receive public funds’ (see Crises Resolution — Fiscal Problems, Nursing Home Crisis, Public Papers of [Governor] Hugh L. Carey, at 1858-1859). “In appointing Morris Abram, a former Nuremberg Trials prosecutor, as Commissioner of the Moreland Commission, Governor Carey stated that ‘[a] serious public concern has been expressed as to the quality of care provided by nursing homes’ and that the public has lost confidence in the ‘government’s ability to assure the efficient delivery of health and related services’ (Executive Order [Carey] No. 2 [9 NYCRR §3.2]). Governor Carey further indicated that ‘the State regulatory structure must be evaluated to insure that nursing homes…provide the highest quality of care with the greatest degree of economy’ (id.). “In May 1975 the Governor sent 11 bills resulting from the Commission’s work to the Legislature[,] includ[ing] Public Health Law §2801-d (‘Private actions by patients of residential health care facilities’) and Public Health Law §2803-c (‘Rights of patients in certain medical facilities’). In his letter to the Legislature accompanying those bills the Governor advised that it was his ‘hope’ that the ‘health care crisis…involving the most defenseless of our citizens, the aged and infirm…could be met by solutions, which would insure a higher level of care and treatment in facilities caring for these groups’ (Bill Jacket, L 1975, ch 648). He advised the Legislature in that letter that the bills were ‘designed to deal directly with the most serious immediate problems which have been uncovered with respect to the nursing home industry, and particularly to insure the deterrence of poor care and fraud and the strengthening of governmental controls’” (Morisett v. Terence Cardinal Cooke Health Care Ctr., 8 Misc 3d at 509-510). The Court in Morisett further stated as follows: “In the Commission’s Summary Report, the Commission indicated that Public Health Law §2801-d provided for liability to a patient of a facility which deprived the patient ‘of rights or benefits created for his well being by federal or state law or pursuant to contract’ which deprivation resulted in injury to the patient. The Commission stated that this statute ‘introduce[s] a degree of equality between nursing homes and their otherwise vulnerable and helpless patients and, through private litigation brought by patients either in individual or class action lawsuit, provides a supplemental mechanism for the enforcement of existing standards of care.’ The Summary further observed that most nursing home patients are devoid of the financial resources to bring a lawsuit and that therefore Public Health Law §2801-d provides incentives ‘for the private bar to handle meritorious suits,’ such as the provisions for minimum compensatory damages, punitive damages where the facility’s actions are willful or reckless, and enabling the court to award successful litigants reasonable attorneys’ fees…” (id. at 512-513; see Kash v. Jewish Home & Infirmary of Rochester, N.Y., Inc., 61 AD3d 146, 156-157 [2009]). The Court in Morisett then aptly concluded its discussion with a finding that the legislative history of Public Health Law §2801-d “evinces an intent to provide an additional avenue of relief to the vulnerable nursing home population to insure that their rights are enforced” (Morisett v. Terence Cardinal Cooke Health Care Ctr., 8 Misc 3d at 514; see Doe v. Westfall Health Care Ctr., 303 AD2d 102, 111-112 [2002]; Zeides v. Hebrew Home for Aged at Riverdale, 300 AD2d at 180), and “demonstrates that the Legislature was aware that incentives were needed to induce attorneys to bring suits on behalf of injured patients, so as to deter future deprivations and compensate those who are injured” (Morisett v. Terence Cardinal Cooke Health Care Ctr., 8 Misc 3d at 514; see Kash v. Jewish Home & Infirmary of Rochester, N.Y., Inc., 61 AD3d at 157). “The reality is that many lawyers will decline a meritorious case when dealing with an individual who has a limited life expectancy, who is not a wage earner, and who is not supporting or providing services to others, and thus where damages are limited. This is precisely the case with many nursing home residents; hence the need for the enactment of incentives” (id.; see Doe v. Westfall Health Care Ctr., 303 AD2d at 111-112). Therefore, the intent of the Legislature in enacting Public Health Law §2801-d — namely, to protect the vulnerable nursing home population by providing a mechanism whereby injured patients are compensated and future deprivations are deterred — suggests, once again, that (1) plaintiff is authorized to include separate interrogatories on the verdict sheet with respect to decedent’s right to recover under Public Health Law §2801-d and her right to recover under the wrongful death and survivorship statutes (see EPTL 5-4.3 (a), 11-3.3[a]); and (2) that damages awarded under Public Health Law §2801-d may be in addition to and cumulative with any damages awarded under the wrongful death and survivorship statutes. Turning now to the proverbial “elephant in the room,” defendants contend that decedent cannot be awarded damages for his death under Public Health Law §2801-d because such an award is contrary to the law of this State. To that end, this State’s wrongful death statute is codified in EPTL 5-4.3 (a), which provides that “damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought.” The survivorship statute is then codified in EPTL 11-3.3 (a), which provides that “[w]here an injury causes the death of a person the damages recoverable for such injury are limited to those accruing before death and shall not include damages for or by reason of death.” Neither of these statutes permits recovery for decedent’s loss of enjoyment of life, nor is there a common law right to any such recovery (see Liff v. Schildrout, 49 NY2d at 631-633; Sand v. Chapin, 238 AD2d at 863). In Banks v. Yokemick (177 F Supp 2d 239, 249 n 7 [SDNY 2001]) (hereinafter Banks), the United States District Court for the Southern District of New York addressed the issue of whether a decedent may recover for his loss of life under 42 USC §1983 — despite the fact that such a cause of action is not recognized under this State’s statutory or common law. In answering this question in the affirmative, the Court stated as follows: “[T]he primary aim embodied in the [S]tate’s survivorship statute is compensatory. The law is designed to provide financial remedy to the decedent’s estate and its beneficiaries, and, to the extent possible, to make them whole for the damages they may have suffered by reason of the decedent’s death. “In contrast, in construing the basic purpose of the award of damages under §1983, the Supreme Court has noted that it is ‘to protect persons from injuries to particular interests, and their contours are shaped by the interest they protect’ (Carey v. Piphus, 435 US 247, 254 [1978] [emphasis added]). As further elaborated, the statute’s central aim may be viewed as a double-edged sword whose dual aspect is designed to protect and deter, to benefit the victim while penalizing the offender (see Monroe v. Pape, 365 US. 167, 184 [1961])…. “On its face and as construed by New York courts, the state’s survival claim law does not evince an objective to secure compensation designed to protect these broader non-economic interests that inure to the benefit of both the decedent and the larger community (see EPTL 11-3.3; Sand v. Chapin, 238 AD2d at 863). In other words, the interests the state law seeks to promote are principally the financial needs of the decedent’s estate and its intended beneficiaries. These values do not encompass the whole expanse of intangible, more social and individual interests, such as enjoyment of life, that inherently derive from the person of the victim and that §1983 protects from unlawful deprivation” (Banks v. Yokemick, 177 F Supp at 248-250 [citation omitted]; see Collado v. City of New York, 396 F Supp 265, 278-279 [SDNY 2019]). The Court then proceeded to note that, because “the underlying purpose of both [the wrongful death and survivorship statutes] is the same[, namely] to compensate for damages attributable to the death of a person injured by a wrongful act,…arguably the analysis [would] yield the same result even if it involved the wrongful death law” (id. at 246 n 5). Significantly, the Court also observed that “[a] result [which] would recognize damages for infliction of severe pain and suffering short of death but extinguish the cause of action at the moment the victim expires is inherently illogical and incompatible with the deterrent purposes of §1983″ (id. at 251). While the issue before this Court is obviously different than that in Banks, the analysis in Banks is nonetheless instructive. Much like 42 USC §1983, Public Health Law §2801-d was designed to protect and deter, to benefit the victim while penalizing the offender. This State’s wrongful death and survivorship statutes, on the other hand, were designed to provide a financial remedy to the decedent’s estate and its beneficiaries. These statutes thus fail to account for the policies and goals inherent in Public Health Law §2801-d. To that end, the Court finds that Public Health Law §2801-d — while perhaps challenging the longstanding jurisprudence that a decedent has no cause of action to recover for his or her own death — may nonetheless coexist with the wrongful death and survivorship statutes. The statutes serve different functions within our legal landscape and, as such, do not conflict with one another. The Court thus declines to find that decedent is precluded from recovering damages for his own death under Public Health Law §2801-d. Indeed, it would be illogical and incompatible with the deterrent purposes of Public Health Law §2801-d to find that a nursing home patient can recover damages for the infliction of severe pain and suffering short of death — but not for death itself (cf. Banks v. Yokemick, 177 F Supp at 251). That being said, courts must “‘interpret a statute so as to avoid an unreasonable or absurd application of the law’” (Lubonty v. U.S. Bank Natl. Assn., 34 NY3d 250, 255 [2019], quoting People v. Garson, 6 NY3d 604, 614 [2006] [internal quotation marks omitted]; see Matter of Mental Hygiene Legal Serv. v. Sullivan, 153 AD3d 114, 120 [2017], affd 32 NY3d 652 [2019]). Here, it would clearly be absurd to interpret Public Health Law §2801-d (2) as providing for compensatory damages for each day that decedent has been dead. The Legislature’s failure to amend this portion of Public Health Law §2801-d (2) in 2009 when it amended Public Health Law §2801-d (1) so as to include “death of a patient” as an “injury” was presumably an oversight (see L 2009, ch 61, §1). Under the circumstances, the Court finds that damages may be awarded in accordance with the language of the statute for those days decedent was alive and suffering from aspiration pneumonia and sepsis.3 Insofar as his death is concerned, however, damages may simply be awarded “in an amount sufficient to compensate [decedent] for [his] injur[ies]” (see Public Health Law §2801-d [2]). Based upon the foregoing, defendants’ motion in limine is denied in its entirety. To the extent not addressed herein, the parties’ remaining contentions have either been rendered academic or are without merit. Therefore, having considered the papers enumerated below, it is hereby ORDERED that defendants’ motion in limine is denied in its entirety; and it is further ORDERED that, for those days decedent was alive and suffering from aspiration pneumonia and sepsis, damages may be awarded “in an amount sufficient to compensate [him] for [the] injury, but in no event less than [25 percent ] of the daily per-patient rate of payment established for the residential health care facility under [Public Health Law §2807]” (Public Health Law §2801-d (2); and it is further ORDERED that, insofar as the injury of death is concerned, damages shall simply be awarded “in an amount sufficient to compensate [decedent]” (see Public Health Law §2801-d [2]). The original of this Decision and Order has been filed by the Court together with the Notice of Motion in Limine dated November 18, 2019 and the submissions enumerated below. Counsel for plaintiff is hereby directed to obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513. Dated: March 2, 2020
