State and Municipal-Run Nursing Homes Are Not Subject to Punitive Damages for Abuse and Neglect

Posted on January 21, 2021

New York Public Health Law Section 2801-d provides for punitive damages against nursing homes whose abuse and neglect of a resident was willful or was committed in reckless disregard of the resident’s rights. One would like to think that that rule would be applicable to private as well as government-run nursing homes alike. In fact, one might even expect government-run nursing homes to be subject to special scrutiny because they are at least partially funded by New York taxpayers. However, in an October 2, 2020 decision, Cornell v. County of Monroe, the Appellate Division, Fourth Department held just the opposite. In that case, the complaint alleged that the executive director of a Monroe-county-run nursing home deprived a wheelchair-bound resident of his manual wheelchair and that, as a result, the resident deteriorated and died. Although the plaintiff sought punitive damages, the Court dismissed that claim ruling that the state and its political subdivisions cannot be subjected to punitive damages. People should keep this in mind when deciding between public and government-run nursing homes for themselves and their loved-ones.

New York Law Permits Lawsuits Against Not Only Nursing Homes that Commit Abuse and Neglect, But Also “Controlling Persons” of Such Nursing Homes

The general perception is that nursing home abuse and neglect cases can be brought only against nursing homes themselves and persons directly responsible for resident care at nursing homes. However, New York Law Public Health Law Section 2808-a also permits lawsuits against the nursing homes’ “controlling persons” for that abuse and neglect even if those persons were not directly involved in that abuse and neglect. A “controlling person” means “any person who by reason of a direct or indirect ownership interest (whether of record or beneficial) has the ability, acting either alone or in concert with others with ownership interests, to direct or cause the direction of the management or policies of said facility.” The purpose of this rule is to ensure that that persons who profit from a nursing home are subject to liability for illegal conduct that occurs there. In a September 25, 2020, Chow v. Shorefront Operating, a federal district court in the Eastern District of New York ruled that allegations that two entities — one of which owned the property occupied by a nursing home and the other which provided administrative services to the nursing home — whose ownership significantly overlapped with that of the nursing home, were “controlling entitles” subject to suit for failing to provide adequate care. This statute provides an additional arrow in the quivers of persons seeking justice for damages nursing homes cause to themselves or their loved ones.