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A Guide to Pressure Sore Cases: Part One


Pressure ulcers are among the most common injuries suffered by nursing home residents. They can be painful and debilitating, and are horrifying to the resident’s family and to jurors alike. Practitioners should have a basic understanding of the law protecting nursing home residents who develop bed sores and be able to make a preliminary determination as to whether a bed sore case should be investigated further.

Nursing home residents are protected by a complex web of federal and state regulations which govern almost every aspect of nursing home care. On the federal level, in 1987, the U.S. Congress enacted a far reaching set of reforms to nursing home regulations to improve nursing home quality.The legislation expanded state and federal responsibilities for nursing home supervision and increased sanctions for noncompliance. The stated purpose of the reforms was to ensure that each nursing home resident receives care which enables the resident to “attain the highest practical physical, mental and psychosocial well-being.” The regulations, collected at 42 C.F.R. Part 483, set forth detailed standards for resident’s rights, the quality of resident’s care, proper maintenance of the facility and other facility practices.

States license nursing homes and also have the authority to enact their own set of nursing home regulations to complement federal oversight. The statutory authority of the New York State Commissioner of Health to regulate nursing homes is set forth in Public Health Law Section 2803. Public Health Law Section 2803-C(3)(e) expressly states that each nursing home patient has the right to adequate and appropriate medical care. Detailed New York State regulations governing the quality of care in nursing homes are set forth in 10 N.Y.C.R.R. Part 415. The New York regulations largely track their federal counterpart, although they are not identical. Both sets of regulations must be referenced in any nursing home neglect case.

New York also protects nursing home residents with a private statutory right of action under Public Health Law Section 2801-d. PHL 2801-d is perhaps the single most powerful tool in the practitioner’s arsenal. PHL 2801-d creates a private right of action for the nursing home resident who suffers any deprivation of a right or benefit conferred by statute, regulation or the nursing home contract. A prima facie PHL 2801-d case is made out when the resident proves the nursing home violated any one of the myriad state or federal regulations protecting residents and demonstrates that the violation caused the resident’s injury. Under the statute, the burden then shifts to the nursing home to prove that “the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury … to the patient.” A prima facie case for the resident under PHL 2801-d can be easier to prove than a traditional negligence claim (in which the plaintiff must establish the facility acted unreasonably), or a medical malpractice claim (in which the plaintiff must establish departures from accepted standards of care). Significantly, PHL 2801-d also provides for minimum statutory damages, punitive damages when willful or reckless disregard of the resident’s rights can be proved and, in the discretion of the court, attorney fees to the prevailing resident’s attorney.

By |2018-02-13T18:05:55+00:00September 14th, 2015|Attorney Articles, Medical Malpractice, Nursing Home Negligence|Comments Off on A Guide to Pressure Sore Cases: Part One