PASQUA v. BON SECOURS NEW YORK HEALTH SYSTEM INC

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Supreme Court, Bronx County, New York.

Fannie L. PASQUA, Plaintiff, v. BON SECOURS NEW YORK HEALTH SYSTEM, INC., d/b/a Schervier Nursing Care Center, Defendant.

Decided: September 25, 2006

Steinberg & Symer, LLP, for defendant. Stein, Schwartz, Chesir & Rosh, for plaintiff.

The following documents were considered in reviewing defendant's motion seeking partial summary judgment dismissing the statutory claims under Public Health Law § 2801-d(1):

Plaintiff Fannie L. Pasqua commenced this action seeking to recover money damages for personal injuries sustained while a patient at a residential healthcare facility.   The complaint alleges that, on several occasions, plaintiff was left unattended and fell as she walked without proper assistance while a resident at Schervier Nursing Care Center.   From those facts, plaintiff avers causes of action based on common law (e.g., negligence and malpractice) and violation of Section 28 of the Public Health Law. Defendant Bon Secours New York Health Systems, Inc.1 now moves for partial summary judgment, pursuant to CPLR § 3212, dismissing any and all claims based upon the statutory right of action under Public Health Law as impermissibly duplicative of the common law claims.

Factual and Legal Background

Responding to a series of scandals concerning abuse of residents in nursing homes in the 1970's, the New York State legislature passed laws regulating residential health care facilities.   One of the remedial statutes, Public Health Law 2801-d, established a private right of action for residents who sustain injuries as a result of deprivation of rights or benefits by the facility.   Specifically, the statute provides that nursing homes that “deprive any patient ․ of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said deprivation.”  Public Health Law § 2801-d(1).  (Hereinafter referred to as “PHL § 2801-d(1)”).   Right or benefit is defined as:  “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 where noncompliance by said facility ․ has not been expressly authorized․” Id.

 Here, the allegations in the complaint are sufficient to state a claim under PHL § 2801-d (1).   Such cause of action is premised on the alleged deprivation of plaintiff Pasqua's rights to appropriate medical and nursing care, including the failure to provide sufficiently and properly trained personnel to assist plaintiff in ambulating, and the failure to provide sufficient and adequate personnel to attend to plaintiff's needs while a resident of defendant's nursing home.   See Zeides v. The Hebrew Home for the Aged at Riverdale, Inc., 300 A.D.2d 178, 753 N.Y.S.2d 450 (1st Dept.2002);  Morisett v. Terence Cardinal Cooke Health Care Center, 8 Misc.3d 506, 797 N.Y.S.2d 856 (N.Y. Supt. Ct.2005).

Defendant nursing health care facility, however, argues that plaintiff patient is precluded from raising such statutory claim since it is based upon the same factual allegations upon which plaintiff relies to demonstrate her tort claims (negligence and malpractice), namely that her two fall accidents occurred when plaintiff was left unattended and allowed to walk without proper assistance.   According to defendant, a plaintiff cannot plead, prove or recover damages under both common law principles and under PHL § 2801-d(1) from the same act, omission or violation.   In essence, defendant argues that PHL § 2801-d(1) is limited to new rights not protected under common law.

Discussion

 In support of its argument of the prohibition on concurrent remedies, defendant relies primarily upon the Fourth Department holding in Goldberg v. Plaza Nursing Home Comp., 222 A.D.2d 1082, 635 N.Y.S.2d 841 (4th Dept.1995), which was the first Department of the Appellate Division-and one of the few decisions to analyze a right of action under PHL § 2801-d(1).   That case involved a nursing home resident who died, from either strangulation or cardiac arrest, when the facility's employees failed to respond to her calls to release her from a vest restraint.   The Goldberg court held that those facts did not state a cause of action under PHL § 2801-d(1).   It found that the purpose of the statutory action was to provide a remedy for patients who are denied rights under § 2803-c and that it was “not to create a new personal injury cause of action based on negligence when that remedy already existed.”   Since the plaintiff had a wrongful death action based upon negligence, the Goldberg court reasoned, an additional statutory cause of action was not warranted, and to permit one would extend the statute to every negligence case involving a residential care facility.  Id.

The Fourth Department, however, later revisited the same issue in Doe v. Westfall Health Care Center, Inc., 303 A.D.2d 102, 755 N.Y.S.2d 769 (4th Dept.2002), and explicitly overruled Goldberg's prohibition on concurrent remedies of common law and PHL § 2801-d(1).  Doe involved a woman in a vegetative state, who was raped and impregnated by a male attendant in the defendant's nursing home.   She gave birth to a baby boy and subsequently died of causes unrelated to the pregnancy.   A lawsuit filed by her estate asserted causes of action for negligence, PHL § 2801-d (1), breach of contract, strict liability and breach of warranty of habitability.   The trial court dismissed the Public Health Law cause of action, as well as those for strict liability and breach of warranty.   That left only the causes of action for negligence and breach of contract, and the negligence cause of action was limited to negligent hiring, training and supervision of employees.

On appeal, however, the Appellate Division, Fourth Department in Doe reinstated the statutory cause of action.   The deprived right upon which the cause of action was premised was the freedom from abuse provided for in PHL § 2803-c and in the contract with the nursing home.   With reference to its prior holding in Goldberg, the Doe court stated:

We decline to apply the reasoning set forth in Goldberg.   Instead, we conclude that the clear intent of section 2801-d was to expand the existing remedies for conduct that, although constituting grievous and actionable violations of important rights, did not give rise to damages of sufficient monetary value to justify litigation.

Instead, the Doe court found that the rape of the plaintiff's decedent “is precisely the sort of conduct that [§ 2801-d] was designed to target, but recovery for such conduct is often barred for plaintiffs who sue at common law.”   In this regard, the Doe court pointed out, claims for sexual assault based on negligent hiring, training and supervision usually flounder due to the absence of foreseeability.   Because nursing home patients are a particularly “vulnerable population,” the Doe court noted, the Legislature provided an easier route for enforcing rights and holding their caretakers liable.   Citing the provision of PHL § 2801-d (4) that the statutory remedies are “in addition to” other remedies, the court found that “[i]t is precisely because of the inadequacy of existing common-law causes of action to redress abuse of patients in nursing homes that Public Health Law § 2801-d was enacted.”   Therefore, the Doe court reasoned, the Legislature could not have intended to prevent patients from asserting a statutory claim merely because their common-law claims survived a motion to dismiss.  Id. The Doe court concluded by holding:  “[W]e therefore overrule our decision in Goldberg insofar as we determined therein that summary judgment dismissing the Public Health Law cause of action was appropriate despite doubt concerning the efficacy of the remaining common law cause of action” and that the statutory cause of action will stand in Doe even if those for negligence and breach of contract do not survive further motions. It further expressly “reject[ed] any unintended implication in Goldberg ․ that fiduciary representatives of incompetent patients who are abused in skilled nursing homes have no redress for that abuse ․”

Some trial courts and legal commentators have interpreted the Doe decision to stand for the proposition that a PHL § 2801-d(1) cause of action does not lie where there is an adequate remedy to the plaintiff under existing tort law.   See e.g., Acevedo v. Augustana Lutheran Home, 7 Misc.3d 1005(A), 2004 WL 3261175 (N.Y. Sup.Ct., 2004);  Jacobs v. Newton, 1 Misc.3d 171, 768 N.Y.S.2d 94 (N.Y.C. Civil Court, 2003);  Peter Kolbert and John C. Webber, Public Health Law § 2801-d(1):  A Remedy For Every Wrong?, N.Y.L.J., April 15, 2006.   See also, Begandy v. Richardson, 134 Misc.2d 357, 510 N.Y.S.2d 984 (N.Y.Sup.Ct., 1987).   For example, in Bielewicz v. Maplewood Nursing Home, Inc., 4 Misc.3d 475, 778 N.Y.S.2d 666 (N.Y.Sup.Ct., 2004) the complaint alleged negligent supervision involving a wheelchair-bound patient who, like plaintiff in this case, was left unattended and fell.   Procedurally, the plaintiff sought to amend the pleadings to add a PHL § 2801-d(1) cause of action.   The court denied the amendment, quoting from the language of the Doe decision that § 2801-d(1) provided a remedy where a violation had occurred which otherwise “did not give rise to damages of sufficient monetary value to justify litigation.”   As the Bielewicz decision explains, this “careful language shows that this exception was not meant to authorize a private cause of action in every negligence case.”   Rather, under this interpretation of Doe, in a case where there is no difficulty with plaintiff's proof and no bar to recovery in negligence or malpractice, Goldberg would not seem to be overruled by Doe and the Goldberg rule, proscribing concurrent remedies, would apply.

Under Bielewicz's interpretation of Doe, plaintiff herein would have no viable cause of action under PHL § 2801-d (1).   As noted above, such statutory claim is based upon the same factual allegations upon which plaintiff relies to establish her tort claims (negligence and malpractice), namely that her two fall accidents occurred when plaintiff was left unattended and allowed to walk without proper assistance.   In addition, no allegation has been made that plaintiff does not have a viable claim of sufficient monetary value under the theory of negligence or malpractice.  Bielewicz is, however, a trial court level decision and therefore has no binding authority on this court of concurrent jurisdiction.  “A decision of a court of equal or inferior jurisdiction is not necessarily controlling, though entitled to respectful consideration.” McKinney's Cons. L. of N.Y. Ann. Book 1, Statutes § 72, at p. 143.

Even if this Court were to accept Bielewicz's interpretation of Doe as completely accurate, this Court is not required to accept such interpretation as binding on this Court since the Appellate Division, First Department has a different view on the scope of the nursing home claims under PHL § 2801-d (1).   The general rule is that inferior courts must follow applicable decisions of the Appellate Division in its department, where the Court of Appeals has not established a precedent on an issue.   This concept is founded upon the bedrock principle of stare decisis.  Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (2nd Dept.1984);  People v. Brisotti, 169 Misc.2d 672, 652 N.Y.S.2d 206 (App.Term, 1st Dept.1996);  People v. McMurty, 141 Misc.2d 510, 538 N.Y.S.2d 127 (N.Y.Sup.Ct.,1987), affd. 174 A.D.2d 988, 573 N.Y.S.2d 6 (4th Dept.1991);  Josephson v. Josephson, 121 Misc.2d 572, 469 N.Y.S.2d 285 (N.Y.Sup.Ct.,1983), and “the fact that there is in New York State but one Appellate Division, albeit divided into four Departments.”  Reyes v. Sanchez-Pena, 191 Misc.2d 600, 606, 742 N.Y.S.2d 513 (N.Y.Sup.Ct., 2002).   Consequently, in this action, this court is constrained to adhere to the pronouncement of the First Department.

The Appellate Division, First Department has taken the view, as expressed in Zeides v. Hebrew Home For the Aged At Riverdale, Inc., 300 A.D.2d 178, 753 N.Y.S.2d 450 (1st Dept.2002), that a nursing home claim under PHL § 2801-d(1) may accompany a common law tort claim.   Shortly before Doe was decided, the First Department issued the decision in Zeides v. Hebrew Home For The Aged, supra, which addressed the scope of a cause of action under PHL § 2801-d (1) in resolving a statute of limitations issue.   The plaintiff's decedent in that case sustained injuries including bed sores, malnutrition and falls while a resident in the defendant nursing home.   The complaint alleged negligence, wrongful death and a cause of action under PHL § 2801-d(1), premised upon deprivations of rights under PHL § 2803-c and § 415.12 of the Health Code. The defendant moved to dismiss the action as barred by the two-and-a-half-year statute of limitations applicable to medical malpractice actions.   The Supreme Court, Bronx County, denied the motion.

The Appellate Division affirmed the trial court's decision.   The Zeides court determined that while the negligence claim may have been intermingled with claims of malpractice such that the defendant should be permitted to renew the motion as to that claim upon the completion of discovery, the cause of action under the Public Health Law was not barred by the malpractice statute of limitations.   The Zeides court found that the statute “contains nothing that would indicate an intent to equate its private right of action with one for either medical malpractice or ordinary negligence.”   Noting that the statutory basis for liability is neither a departure from proper practice nor a breach of duty of care, but rather a deprivation of a right, the Zeides court rejected the defendant's argument that the entire action was for malpractice.   It found that “at a minimum, plaintiff has stated a cause of action for violations of rights enumerated under Public Health Law § 2803-c(3), the remedy for which is ‘in addition to and cumulative with any other remedies available to a patient’ Public Health Law § 2801-d(4).”   Therefore, the Zeides court held, the applicable statute of limitations was the three-year period under CPLR § 214(2), which applies to actions for liability imposed by statute.

Nothing in Zeides v. Hebrew Home, supra, suggests to this Court that the First Department, Appellate Division, would adhere to the Fourth Department's strict interpretation of PHL § 2801-d(1), so as to restrict the availability of such a claim to only where a party has no viable claim of sufficient monetary value under a theory of negligence or malpractice.   On the contrary, Zeides v. Hebrew Home, supra relies upon the express language of the statute which states that the remedies under PHL § 2801-d(1) are “in addition to and cumulative with other remedies available under the law.”   Thus, that the same injuries may also have been attributable to malpractice or negligence cannot preclude the statutory action in light of the express provision that the action is in addition to and cumulative with remedies available under the law.   See Morisett v. Terence Cardinal Cooke Health Care Center, 8 Misc.3d 506, 797 N.Y.S.2d 856 (Supreme Court New York County, 2005)

Moreover, those decisions that have narrowly interpreted the scope of PHL § 2801-d(1)-limiting a nursing home statutory claim to such instances where a plaintiff has no viable common law remedy-have failed to recognize that there is a significant difference in the proof required under common law versus a statutory nursing home claim under PHL § 2801-d(1).   For instance, the plaintiff's burden under a negligence claim requires proof of a duty, breach of a duty, injury and proximate cause.   In contrast, a nursing home claim under PHL § 2801-d(1) requires proof of a deprivation by a residential health care facility of any right or benefit created or established by law for a patient's well being by a statute, code, rule, regulation or contract.2  Thus, there may be circumstances where a plaintiff would succeed on a nursing home claim, but not on a common law claim, or vice versa, since such claims are not duplicative.

Significantly, one trial court decision in the First Department, Morisett v. Terence Cardinal Cooke Health Care Center, 8 Misc.3d 506, 797 N.Y.S.2d 856 (Supreme Court New York County, 2005), has also rejected the Fourth Department's strict interpretation of PHL § 2801-d(1), albeit relying heavily upon the legislative history of the statute, but citing Zeides v. Hebrew Home, supra, among other cases.   In Morisett v. Terence Cardinal Cooke Health Care Center, supra, plaintiff alleged, inter alia, that the nursing home subjected the patient to significant medication errors and failed to properly provide and implement a plan of care and to provide adequate facilities and personnel to care for the patient, who allegedly required close supervision and was at high risk for respiratory arrest, thereby causing her to “plug from mucous” and suffer respiratory arrest, brain injury, and death.   The Morisett court found that such allegations were sufficient to state a claim under the statute providing a private right of action to nursing home patients injured as a result of deprivation of any right or benefit established for that patient's well-being.   With regard to the argument that a PHL § 2801-d(1) claim is available only where a party has no viable claim of sufficient monetary value under a theory of negligence or malpractice, the Morisett court categorically rejected the argument by citing to the legislative history which “evinces an intent to provide an additional avenue of relief to the vulnerable nursing home population to insure that their rights are enforced.”  Id. (Citations omitted).   To hold otherwise would be essentially to disregard the express language of the statute which states that the remedies under PHL § 2801-d(1) are “in addition to and cumulative with other remedies available under the law.”   See Zeides v. Hebrew Home For the Aged At Riverdale, Inc., 300 A.D.2d 178, 753 N.Y.S.2d 450 (1st Dept.2002).   Accordingly, defendant's motion must denied.

Conclusion

In short, the nursing healthcare facility's position on its motion for summary judgment, that a nursing home claim under PHL § 2801-d(1) is not available where a patient has a viable claim under common law, is consistent with the cases emanating from Fourth Department that have interpreted the scope of Public Health Law § 2801-d(1).   However, the cases from the First Department have a divergent view on the issue.   The cases from the First Department have interpreted the statute more broadly so as to permit a plaintiff to proceed with a cause of action under PHL § 2801-d, which provides a private right of action to nursing home patients injured as a result of a deprivation of any right or benefit established for that patient's well-being by contract or state or federal statute, code, rule or regulation, even if the plaintiff has simultaneously asserted traditional medical malpractice and negligence claims.   Accordingly, defendant's motion is denied pursuant to Zeides v. Hebrew Home For the Aged At Riverdale, Inc., supra, and its progeny.

This constitutes the Decision and Order of the Court.

FOOTNOTES

1.   Defendant Bon Secours New York Health Systems, Inc. does business as Schervier Nursing Care Center.

2.   Under PHL 2801-d(1), once a plaintiff makes a prima facie case showing of a “deprivation of an (enumerated) right of benefit,” the burden of proof shifts to the defendant facility to prove as an affirmative defense that the facility “exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted.”

DIANNE T. RENWICK, J.

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