2010 New York Code
PBH - Public Health
Article 28 - (2800 - 2822) HOSPITALS
2801-D - 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, 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.
    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.