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THE DAMAGES FOR PAIN AND SUFFERING AND DEATH UNDER THE PUBLIC HEALTH LAW PRIVATE RIGHT OF ACTION AGAINST RESIDENTIAL HEALTH CARE FACILITIES ARE NOT LIMITED TO THOSE AVAILABLE FOR WRONGFUL DEATH UNDER THE ESTATES, POWERS AND TRUSTS LAW (EPTL) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, explained the differences between damages available for the private right of action against residential health care facilities under the Public Health Law, and the damages available for wrongful death under the Estates, Powers and Trusts Law (EPTL). (1) Public Health Law 2801-d encompasses compensatory and punitive damages for death; (2) the Public Health Law “death” damages are not limited to the pecuniary loss suffered by surviving family members as they are under the EPTL; and (3) damages under the Public Health Law are not the same as pain and suffering under the EPTL and do not require proof the decedent experienced cognitive awareness of the injury:

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.” …

… [T]he wrongful death and survivorship statutes do not permit damages to a person for his or her own death. Hence, imposing here [theese] limits … would render meaningless a nursing home’s potential statutory liability to a patient for his or her death. …

Although, at common law, damages for loss of enjoyment of life cannot be awarded to a person whose injuries preclude awareness of the loss as such damages serve no compensatory purpose … , the Legislature chose to allow such damages through the [Public Health Law] statute at issue here to serve a purpose beyond simply compensating the victim, i.e., to deter violations of patient rights. “It is precisely because of the inadequacy of the existing common-law causes of action to redress the abuse of patients in nursing homes that Public Health Law § 2801-d was enacted … . Hauser v Fort Hudson Nursing Ctr., Inc., 2021 NY Slip Op 07325, Third Dept 12-23-21

 

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