On August 18, 2022, Governor Kathy Hochul signed into law a bill amending Section 2801-d of New York’s Public Health Law to expressly provide the legal representative or estate of a nursing home resident the right to bring a suit for injuries under this law. The amendment comes in the wake of the COVID-19 pandemic that led to a renewed focus on the regulation of New York’s nursing homes, and after more than a decade of failed efforts by New York’s Legislature to pass similar legislature through both the Assembly and Senate.

The amendment to PHL 2801-d codifies what has been, in effect, the law as interpreted by New York’s trial and intermediate appellate courts. As recently as 2021, for example, the Supreme Court in Butler v. Fort Hudson Nursing Ctr., Inc. (71 Misc3d 275 ([Sup Ct, Washington Cty 2021]) rejected the argument that the estate administrator-plaintiff was precluded from seeking recovery of damages for injuries sustained by the decedent under PHL 2801-d.

The Supreme Court in Butler acknowledged the prior efforts of the Legislature to amend PHL 2801-d to include language permitting such a recovery. However, Supreme Court agreed with the plaintiff’s argument that the addition of this language was “superfluous” and “not necessary” to preserve the right to recover damages under PHL 2801-d after the death of a nursing home resident. The Court noted that PHL 2801-d’s definition of injury includes death, the EPTL protects causes of action from being extinguished by the death of the injured party, and that PHL 2801-d states damages will be assessed to compensate a resident for injury. Thus, the Court concluded there was a statutory right under PHL 2801-d for the estate to recover damages on behalf of a deceased nursing home resident. On appeal, the Third Department affirmed (Hauser v. Fort Hudson Nursing Ctr., Inc., 202 AD3d 45 [3d Dept 2021]).

Consistent with the above recent case law, the Sponsor’s Memorandum describes the amendment as seeking to “clarify” the right to bring a lawsuit under PHL 2801-d extends to the legal representative and estate of a nursing home resident. Further, the Memorandum notes the amendment “makes it clear” the incapacity or death of a resident does not insulate the nursing home.

Because the amendment is merely a clarification of current practice and interpretation of PHL 2801-d, we do not anticipate an influx of new lawsuits. However, we do expect future complaints to reference and cite PHL 2801-d in wrongful death lawsuits to preempt any argument such claims do not exist and, to the extent there was any inconsistency in applying PHL 2801-d to wrongful death lawsuits, for courts to now recognize the viability of such claims.

For any questions about this topic, please do not hesitate to contact Abbie Eliasberg Fuchs, Bradley Wanner, Daniel Strecker, or the Harris Beach attorney with whom you typically work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.