Private actions by patients of residential health care facilities

§ 2801-d. Private actions by patients of residential health care
facilities. 1. Any residential health care facility that deprives any
patient of said facility of any right or benefit, as hereinafter
defined, shall be liable to said patient for injuries suffered as a
result of said deprivation, except as hereinafter provided. For purposes
of this section a "right or benefit" of a patient of a residential
health care facility shall mean 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 with such statute, code, rule or
regulation has not been expressly authorized by the appropriate
governmental authority. No person who pleads and proves, 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 shall be liable under this section. For the
purposes of this section, "injury" shall include, but not be limited to,
physical harm to a patient; emotional harm to a patient; death of a
patient; and financial loss to a patient.

2. Upon a finding that a patient has been deprived of a right or
benefit and that said patient has been injured as a result of said
deprivation, and unless there is a finding that the facility exercised
all care reasonably necessary to prevent and limit the deprivation and
injury to the patient, compensatory damages shall be assessed in an
amount sufficient to compensate such patient for such injury, but in no
event less than twenty-five percent of the daily per-patient rate of
payment established for the residential health care facility under
section twenty-eight hundred seven of this article or, in the case of a
residential health care facility not having such an established rate,
the average daily total charges per patient for said facility, for each
day that such injury exists. In addition, where the deprivation of any
such right or benefit is found to have been willful or in reckless
disregard of the lawful rights of the patient, punitive damages may be
assessed.

3. A patient residing in a residential health care facility may also
maintain an action pursuant to this section for any other type of
relief, including injunctive and declaratory relief, permitted by law.

4. Any damages recoverable pursuant to this section, including minimum
damages as provided by subdivision two of this section, may be recovered
in any action which a court may authorize to be brought as a class
action pursuant to article nine of the civil practice law and rules. The
remedies provided in this section are in addition to and cumulative with
any other remedies available to a patient, the patient's legal
representative, or the patient's estate at law or in equity or by
administrative proceedings, including tort causes of action, and may be
granted regardless of whether such other remedies are available or are
sought. A violation of subdivision three of section twenty-eight hundred
three-c of this article is not a prerequisite for a claim under this
section. Exhaustion of any available administrative remedies shall not
be required prior to commencement of suit hereunder.

4-a. Under this section, any action that may be brought, and any
relief that may be sought or received, may be brought, sought or
received in an appropriate case by the patient's legal representative or
the patient's estate.

5. The amount of any damages recovered by a patient, in an action
brought pursuant to this section shall be exempt for purposes of
determining initial or continuing eligibility for medical assistance
under title eleven of article five of the social services law and shall
neither be taken into consideration nor required to be applied toward
the payment or part payment of the cost of medical care or services
available under said title eleven.

6. If judgment in an action maintained under this section is rendered
in favor of the plaintiff, in its discretion the court may, if justice
requires, award attorneys' fees to the plaintiff based on the reasonable
value of legal services rendered and payable by the defendant.

7. Any waiver by a patient or his legal representative of the right to
commence an action under this section, whether oral or in writing, shall
be null and void and without legal force or effect.

8. Any party to an action brought under this section shall be entitled
to a trial by jury and any waiver of the right to a trial by a jury,
whether oral or in writing, prior to the commencement of an action,
shall be null and void, and without legal force or effect.

9. No insurance premium or part thereof paid by any residential health
care facility which is attributable solely to insurance against
liability pursuant to this section shall be allowed as a reimbursable
cost for purposes of any proposed rate schedule for payments for
hospital or health-related service which the commissioner shall
determine and certify pursuant to section twenty-eight hundred seven of
this chapter.

10. a. No person shall discriminate against any patient of a
residential health care facility because such patient, or the patient's
legal representative, has brought or caused to be brought any action
pursuant to this section, or against any patient or employee of a
residential health care facility because such patient or employee has
given or provided or is to give or provide testimony or other evidence
for purposes of such action.

b. Any patient who has reason to believe that he or she may have been
discriminated against in violation of this subdivision may, within
thirty days after such alleged violation occurs, file a complaint with
the commissioner. The commissioner shall investigate any such complaint,
and shall, if such complaint is deemed meritorious, serve upon the
administrator of the subject facility, in his capacity as a
representative of the facility, either by personal service or by
certified mail addressed to the administrator in care of the facility,
return receipt requested, a complaint stating the substance of the
alleged discrimination with reasonable particularity. A hearing shall be
conducted in accordance with section twelve-a of this chapter within
thirty days of the service of such complaint. The hearing officer shall
make a report of his findings to the commissioner, who, if he determines
that a violation of this subdivision has occurred, may grant whatever
relief is necessary and appropriate to remedy the violation, including,
but not limited to readmittance of patients wrongfully discharged. Any
such order of the commissioner shall be appealable by a proceeding under
article seventy-eight of the civil practice law and rules.

c. Whenever the commissioner has issued an order as provided in this
subdivision he may apply to any court of competent jurisdiction for the
enforcement of such order.

d. Any action taken by the commissioner in accordance with the
provisions of this subdivision shall not be exclusive, and may be taken
in conjunction with an action for a civil penalty for a violation of
paragraph a of this subdivision, or any private civil action brought by
an injured party, or both.

e. Any employee who has reason to believe that he or she may have been
discriminated against in violation of this subdivision may bring a
proceeding in accordance with the provisions of article fifteen of the
executive law.