The Appellate Division of the Third Department issued its decision in Hauser v. Fort Hudson Nursing Ctr., holding that the damages available to plaintiffs in cases asserting a private right of action against residential health care facilities under the Public Health Law were greater than the damages available for plaintiffs in wrongful death suits under the Estates, Powers and Trusts Law (EPTL). The decision, issued in December 2021, affirmed a February 2021 decision by New York Supreme Court, Washington County in Butler v. Fort Hudson Nursing Ctr., Inc., further supporting the legal theory that under Public Health Law § 2801-d (1) a plaintiff is able to seek damages for the decedent’s death in deviation from common law wrongful death and survivorship statutes, which do not permit damages to a person for her own death.

The court in Butler first touched upon this issue in a March 2020 decision. “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.” Butler v. Fort Hudson Nursing Ctr., Inc., 2020 NY Slip Op 50382(U), ¶ 5, 67 Misc. 3d 1204(A), 125 N.Y.S.3d 839 (Sup. Ct.). The court, having no state decisions to base their analysis, looked to a federal matter for guidance. In Banks v. Yokemick, the United States District Court for the Southern District of New York addressed the issue of whether a decedent may recover for her death under 42 USC §1983 – despite the fact that such cause of action is not recognized under New York state statute or common law. Banks v. Yokemick, 177 F. Supp. 2d 239, 251 (S.D.N.Y. 2001).

In Banks, the Southern District Court relied on the legislative intent of 42 USC § 1983 as the deciding factor, stating 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 purpose of §1983.” Banks v. Yokemick, at 251 .

The court in Butler concluded that similar to 42 USC §1983, Public Health Law §2801-d was designed to protect victims and to deter their negligent treatment. Butler v. Fort Hudson Nursing Ctr., Inc., at  ¶ 6, 67. New York State’s wrongful death and survivorship statutes, on the other hand, were designed to provide financial remedy to the decedent’s estate and its beneficiaries. Id.  “The Court thus declines to find that decedent is precluded from recovering damages for his own death under Public Health Law § 2801-d.” id.

In Hauser, an appeal of the Butler decision, the Appellate Division of the Third Department fully embraced the Butler court’s logic. The Court states “the express language of Public Health Law § 2801-d (1) provides that a nursing home facility is liable to a ‘patient’ for ‘injuries suffered as a result of’ the deprivation of a right or benefit conferred by any contract, statute or regulation, expressly defining ‘injury’ to include ‘death of a patient.’” Hauser v. Fort Hudson Nursing Ctr., Inc., 2021 NY Slip Op 07325, ¶ 2 (App. Div. 3rd Dept.). The Court goes on to describe the legislative history of the statute and highlight that the statute is supposed to function as a deterrent. In conclusion, the Court held the plaintiff properly commenced this action on behalf of the decedent to recover for the injury of death. Id.

Interestingly, however, the Court left open the calculation of such damages.  The Court stated that for the injury of death, compensatory damages shall be assessed in an amount sufficient to compensate such patient for such injury. Id. Accordingly, the Court left some maneuvering room to minimize the damages that can be collected under this legal theory. It remains to be seen to what extent this will be picked up by the Plaintiff’s bar, and whether it will result in more aggressive negotiation practices or possibly an uptick in filings if the Plaintiffs’ bar perceives this case as adding value to potential claims.

Read the entire decision in Hauser v. Fort Hudson Nursing Ctr., Inc.