New York Nursing Home Abuse Laws
Damage Caps
The state of New York does not cap damages awarded on personal injury, medical malpractice and wrongful death cases. In actions for wrongful death a claimant may be awarded compensatory and punitive damages. The recoverable losses include pecuniary; medical aid, nursing, and attention incident to the injury that was the proximate cause of death; funeral expenses; interest upon the principal sum recovered by the plaintiff from the date of the decedent’s death.
Attorney’s Fees
Although a client may choose to pay and attorney on an hourly basis, contingent fee agreements are almost always the method used to retain an attorney in actions for nursing home neglect and abuse. The client has the option of choosing the methods for determining the contingent fee percentage, it may be based on: (i) the net sum recovered after deducting from the amount recovered expenses and disbursements for expert testimony and investigative or other services properly chargeable in pursuing the action: or (ii) if the attorney agrees to pay costs and expenses of the action pursuant to Judiciary Law §488(2)(d) on the gross sum recovered before deducting expenses and disbursements. The law requires that the retainer agreement or letter of engagement must describe these two methods, explain the financial ramifications of each, and clearly indicate the client’s selection. New York law limits attorneys fees in personal injury cases to one-third of the recovery and establishes the presumption that a fee equal to or less than one-third is fair and reasonable. However, in cases involving medical malpractice, there is a “sliding scale” that limits an attorney’s contingent fee. The scale limits fees as follows: 30% of the first $250,000 25% of recovery from $250,000 – $500,000 20% of recovery from $500,000 – $1,000,000 15% of recovery from $1,000,000 – $1,250,000 10% of recovery over 1,250,000 However, an application for higher fees can be made where, because of “extraordinary circumstances,” the fee does not provide “adequate compensation.” 
New York Long Term Care Facility Regulation
New York’s residential health care facilities are responsible for the health and wellbeing of more than 100,000 persons ranging from seniors that cannot care for themselves to infants with special needs. For these patients, the residential health care facility is their home. The long term care providers have a special relationship with these residents who depend on the facility for their every basic human need. Nursing homes have the unique responsibility of recognizing the dependence of the residents while promoting their highest possible level of independence. In acknowledgement of this, New York created a code intended to guarantee the highest possible quality of care and quality of life for nursing home residents which can be located under Part 415.1. Under this set of regulations, nursing homes must meet a minimum standard of care and services in accordance with generally accepted standards of practice. New York regulation Section 415.11 requires that nursing homes provide resident assessment and care planning upon admission to the facility and periodically thereafter. In order to comply with this regulation, the nursing home facility must conduct a comprehensive, accurate, standardized assessment of each resident’s functional capacity. The facility then must develop and keep a current and individualized plan of care to meet each resident’s specific needs based on the results of the assessments. New York law requires the assessments to be performed within 14 days of admission and promptly after changes in a patient’s physical, mental or psychosocial status. The assessment must describe the resident’s medical condition, his/her capability to perform daily activities and identify significant functional impairments. At a minimum, assessments need to include a nursing home resident’s:
- medical condition and prior medical history,
- physical / mental functional status
- medical status,
- nutritional status and requirements,
- special treatments or procedures,
- sensory / physical impairments,
- discharge potential,
- mental / psychosocial status,
- activities potential,
- dental condition,
- rehabilitation potential,
- cognitive status, and
- drug treatment
Based on the assessment results, nursing homes must develop and keep current an individualized comprehensive plan of care to meet each resident’s needs. In accordance with the care plan, nursing homes must provide each resident with the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being, subject to the resident’s right of self-determination.
Disclaimer: This article is for informational purposes only. It is not legal advice and should not be used as legal advice. The legal statutes, laws and procedures contained in this article may not be current and may have been revised since the time of publication or contain errors. An attorney can provide legal guidance only after reviewing the details of your individual case.
Image via Flickr via Stefano Ravalli
