Assembly Bill A763

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   763

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced by M. of A. GOTTFRIED, PAULIN, GALEF, ROBINSON, JAFFEE, MILL-
  MAN, COLTON, CHRISTENSEN, LANCMAN, HOOPER, GREENE, SCARBOROUGH, CAHILL
  -- Multi-Sponsored by -- M. of A. BRENNAN, DINOWITZ, EDDINGTON, GLICK,
  JACOBS,  LIFTON,  McENENY,  McKEVITT,  MOLINARO, PERRY, STIRPE, TOWNS,
  WALKER, WEISENBERG -- read once  and  referred  to  the  Committee  on
  Health

AN  ACT to amend the public health law, in relation to private rights of
  action by patients in residential health care facilities

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 1 of section 2801-d of the public health law,
as added by chapter 658 of the laws of  1975,  is  amended  to  read  as
follows:
  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 depri-
vation, 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-be-
ing  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 stat-
ute,  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD01110-01-9

A. 763                              2

  S  2.    Subdivision  4 of section 2801-d of the public health law, as
added by chapter 658 of the laws of 1975, is amended to read as follows:
  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, 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.
  S 3. This act shall take effect immediately.