Generally, the only persons entitled to bring a lawsuit under New York’s wrongful death statute for the death of a nursing home abuse victim are the victim’s distributees, i.e., persons who would have, by law, inherited from the victim’s estate had the victim not had a will. The recovery in such cases is limited to whatever monetary benefit the distributees would have obtained — such as monetary support — if the victim had continued to live. New York’s wrongful death statute does not permit any recovery for a whole expanse of intangible, more social and individual interests such as enjoyment of life that the nursing home stole from the victim through its abuse that caused the victim’s death. However, in a groundbreaking decision, Butler v. Fort Hudson Nursing Center, Inc., 67 Misc.3d 1204(A) (Sup. Ct. Wash. Cty. 2020), a trial court ruled that such damages are recoverable by the victim’s estate under N.Y. Pub. Health L. Sec. 2801-d. The court emphasized that Sec. 2801-d “was designed to protect and deter, to benefit the victim while penalizing the offender” as opposed to the wrongful death statute which was designed to provide a financial remedy for distributees. This ruling significantly expands damages that can be sought against nursing homes for abuse that leads to a resident’s death.
In an attempt to avoid having to explain to juries the abuse that they perpetrate against residents, nursing homes often include arbitration clauses in their admission agreements that forbid nursing home abuse lawsuits from proceeding against them in court. In the heat of the moment, families attempting to have a loved one admitted to a nursing home, often sign these agreements without even being aware of these arbitration clauses. However, in McCarthy v. Sea Crest Health Care Center, LLC , — A.D.3d —, 133 N.Y.S.3d 482 (2d Dept. 2020), the Second Department ruled that if an admissions agreement is signed by a resident’s family member who is not the resident’s legal representative — such as the resident’s Guardian or a Power of Attorney — the arbitration clause will not be binding if the resident did not have the mental capacity to understand the benefits he would receive as a result of being admitted to the nursing home. Under this case, arbitration clauses in nursing home admissions agreements will likely not be enforceable against residents who are admitted with severe dementia when the admissions agreements are signed by persons who are not the residents’ legal representatives. The Second Department’s ruling opens a new avenue for nursing home abuse victims to have their day in court.