New York State Court of Claims

New York State Court of Claims
RANDONE v. THE STATE OF NEW YORK, # 2010-010-046, Claim No. 113362, Motion No. M-78870

Synopsis

Public Health Law 2801-d cause of action does not encompass violations of mental patient's rights under Mental Hygiene Law 33.02. This novel issue was found to be unsupported by the statutory analysis, legislative history and case law.

Case information

UID: 2010-010-046
Claimant(s): MARIA RANDONE
Claimant short name: RANDONE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113362
Motion number(s): M-78870
Cross-motion number(s):
Judge: Terry Jane Ruderman
Claimant's attorney: RUTBERG & ASSOCIATES, P.C.
By: Richard Greenblatt, Esq.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 19, 2010
City: White Plains
Comments:
Official citation: 30 Misc 3d 335
Appellate results:
See also (multicaptioned case)

Decision

The following papers numbered 1-3 were read and considered by the Court on claimant's motion for leave to amend Claim No. 113362:

Notice of Motion, Attorney's Supporting Affirmation and Exhibit..........................1

Attorney's Affirmation in Opposition.......................................................................2

Attorney's Reply Affirmation...................................................................................3

Background

In May 2005, claimant was a resident at Hudson River Psychiatric Center, a psychiatric hospital operated by the New York State Office of Mental Health. Claimant had a history of mental illness and, due to her obesity and other physical conditions, she often required the assistance of a wheelchair. On May 21, 2005, claimant entered a shower, unassisted by an aide, and fell, sustaining injuries. On February 23, 2007, Claim No. 113362 was filed alleging that claimant's fall was attributable to defendant's negligence. Defendant's amended answer, filed-stamped April 23, 2007, asserted a counterclaim for the costs of claimant's care rendered by the New York State Office of Mental Health from May 2005 through April 2007.

A trial on liability was held and, upon submission of post-trial memorandum by the parties, a written Decision was rendered on January 29, 2010 and filed-stamped on March 10, 2010. The Court found defendant to be 100 percent liable for claimant's fall, on the theory of negligence, due to defendant's failure to take proper steps to safeguard claimant from entering the shower without the necessary assistance. The Court further found that defendant is entitled to recover the costs of services rendered which were not covered by Medicare and which were unrelated to claimant's fall.

Motion to Amend

A trial on damages was scheduled for August 9, 2010; however claimant's counsel was actually engaged elsewhere and, therefore, the trial was adjourned to November 8, 2010. A pretrial conference was held on September 20, 2010. Thereafter, claimant sought leave to amend her claim to assert a cause of action under Public Health Law 2801-d (Motion, Ex. A). Public Health Law 2801-d Private actions by patients of residential health care facilities "authorizes a private right of action for the violation of rights enumerated in 2803-c [Rights of patients in certain medical facilities] of the statute" (Ward v Eastchester Health Care Ctr., LLC, 34 AD3d 247, 248; see also Kash v Jewish Home & Infirmary of Rochester, N.Y. Inc., 61 AD3d 146; Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d 178).

This motion is returnable less than one month prior to the scheduled damages trial. Claimant has failed to provide any explanation for the delay in moving to amend until more than six months after the liability judgment was entered and weeks before the scheduled damages trial.

Defendant opposes the motion and argues that the cause of action created under Public Health Law 2801-d applies only to "residential health care facilities" and must be predicated upon a violation of the rights enumerated under Public Health Law 2803-c Rights of patients in certain medical facilities. Thus, defendant argues that this statutory cause of action, created under Article 28 of the Public Health Law, does not encompass Hudson River Psychiatric Center, which is not under the jurisdiction of the Commissioner of Health. Rather, the psychiatric center is under the jurisdiction of the Office of Mental Health and the rights of their patients are covered by Mental Hygiene Law 33.02 Notice of rights of the mentally disabled, which expressly applies to facilities operated or licensed by the Office of Mental Health (Mental Hygiene Law 33.02[a]). Further, defendant argues that a violation of the rights of the mentally disabled set forth in Mental Hygiene Law 33.02 is not a sanctioned predicate for liability pursuant to terms of the statutory cause of action created under Public Health Law 2801-d. Accordingly, defendant maintains that claimant's proposed amendment should not be permitted because it is insufficient as a matter of law and is not applicable to the facts of this case.

Analysis

Absent prejudice or surprise, leave to amend shall be freely granted (CPLR 3025[b]; see Dickinson v Igoni, 76 AD3d 943; Lucido v Mancuso, 49 AD3d 220). An application to amend, however, should not be granted where the newly asserted claim is "palpably insufficient as a matter of law or is totally devoid of merit" (DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, 491).

Here, claimant presents the novel issues of whether Hudson River Psychiatric Center, a psychiatric hospital operated by the Office of Mental Health, falls within the definition of "residential health care facilities" under the Public Health Law and, if so, whether the cause of action created under Public Health Law 2801-d may be predicated upon a violation of the rights of the mentally disabled enumerated in Mental Hygiene Law 33.02.

The applicability of Article 28 of the Public Health Law is set forth in 2800 and includes all institutions providing "hospital and related services * * * serving principally as facilities for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition or for the rendering of health-related service" (emphasis added). Claimant argues that mental illness is a "human disease" and that she was undergoing treatment for this condition while she was a resident at Hudson River Psychiatric Center. Thus, claimant contends that Hudson River Psychiatric Center is covered by Article 28 of the Public Health Law. Claimant's argument, however, is refuted by the plain text of the statute which specifically excludes mental health facilities from its definition of hospital. Indeed, 2801(1) provides that "the term hospital shall not include an institution, sanitarium or other facility engaged principally in providing services for the prevention, diagnosis, or treatment of mental disability and which is subject to * * * investigation of the department of mental hygiene" (emphasis added). Further, Public Health Law 2801-d Private actions by patients of residential health care facilities expressly applies only to "residential health care facilities," which is a term more narrowly defined than the term hospital and is limited to a "nursing home or a facility providing health-related service" (2801[3]; see Matter of Massena, Town v Whalen, 72 AD2d 838, 839 [Public Health Law definition of hospital is "much more broadly defined" than the term residential health care facility]). "Health-related service" is defined as "physical care" provided in a facility which offers lodging (Public Health Law 2801[4][b]). Additionally, Public Health Law 2803-c Rights of patients in certain medical facilities expressly applies only to nursing homes and facilities providing health related service which are under the jurisdiction of the Commissioner of Health (Public Health Law 2803-c[2]). On the facts presented, Hudson River Psychiatric Center, which is under the jurisdiction of the Office of Mental Health and was engaged principally in providing claimant with services for the treatment of her mental disability, is not covered by Article 28 of the Public Health Law.

The legislative history of Public Health Law 2801-d and 2803-c supports this plain reading of the text of the statute and its express limitation upon the statute's applicability to a specifically defined group of residential health care facilities, i.e., nursing homes. Predating the enactment of Public Health Law 2801-d and 2803-c, "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" (Governor's Memoranda, Nursing Home Operations, McKinney's 1975 Session Laws of New York, p 1764; Morisett v Terence Cardinal Cooke Health Care Ctr., 8 Misc 3d 506, 509 [see also for an extensive discussion of the statute's legislative history]). In Governor Carey's letter to the Legislature accompanying the bills for Public Health Law 2801-d and 2803-c, he stated that these bills were "designed to deal directly with the most serious immediate problems which have been uncovered with respect to the nursing home industry" (Morisett v Terence Cardinal Cooke Health Care Ctr., supra at 510). The Sponsor's Memorandum relating to Public Health Law 2803-c and the transcripts of the Senate debates indicated that the purpose of this section was to establish certain minimum standards for the care of "nursing home patients" (Governor's Bill Jacket for Chapter 648 of the Laws of 1975; Senate Debate Transcripts, 1975, Chapter 648 Transcripts, pp 4521, 4525). "Examination of the legislative history reveals that the term 'residential health care facility' was intentionally used by the Legislature in an effort to curb abuses in the nursing home industry" (see Matter of Massena, Town v Whalen, supra at 839).

This statutory cause of action was created as an additional remedy, separate and distinct from other available traditional tort remedies, which may be also asserted in conjunction with common law causes of action based upon the same alleged facts (Kash v Jewish Home & Infirmary of Rochester, N.Y. Inc., 61 AD3d 146; Sullivan v Our Lady of Consolation Geriatric Care Ctr., 60 AD3d 663). In the Commission's Summary Report contained in the Legislative History, 1975 Chapter 658, the Commission stated that 2801-d provided a "supplemental mechanism for the enforcement of existing standards of care" and included incentives for the private bar to pursue meritorious law suits (Morisett v Terence Cardinal Cooke Health Care Ctr., supra at 512-13). Those incentives include punitive damages and reasonable attorney's fees. Clearly, the legislative history of Public Health Law 2801-d "evinces an intent to provide an addition avenue of relief to the vulnerable nursing home population to ensure that their rights are enforced" (Morisett v Terence Cardinal Cooke Health Care Ctr., supra at 514; see also Marshall v Leppard, 17 Misc 3d 1103[A]).

Contrary to claimant's arguments, there is no indication, either in the text of the statute, the legislative history, or case law, that the cause of action created under Public Health Law 2801-d, applicable to a specifically defined group of residential health care facilities under the jurisdiction of the Commissioner of Health, was intended to encompass a psychiatric hospital engaged principally in providing services for the treatment of claimant's mental disability. Nor is there any support of claimant's contention that this statutory cause of action, expressly predicated upon a violation of the rights enumerated in Public Health Law 2803-c, was intended to include, as a basis for liability, a violation of the rights of mentally disabled patients set forth in Mental Hygiene Law 33.02.

Accordingly, this Court finds that claimant has failed to establish that she has a cognizable claim under the proposed amendment asserting a cause of action pursuant to Public Health Law 2801-d (see Sullivan v Our Lady of Consolation Geriatric Care Ctr., 60 AD3d 663, supra; Passet v Menorah Nursing Home, Inc., 16 Misc 3d 1117(A]). Thus, the proposed amendment is palpably insufficient as a matter of law and claimant's application to amend her claim is therefore DENIED (see DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, supra).

October 19, 2010

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims