Hauser v. Fort Hudson Nursing Ctr., Inc.

• Decision Date: 23 December 2021
• Docket Number: 531436, 533013
• Parties: Jennifer HAUSER, as Administrator of the Estate of Bert Dwain Butler Sr., Deceased, Respondent, v. FORT HUDSON NURSING CENTER, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 45

161 N.Y.S.3d 374

Jennifer HAUSER, as Administrator of the Estate of Bert Dwain Butler Sr., Deceased, Respondent,

v.FORT HUDSON NURSING CENTER, INC., et al., Appellants.

531436, 533013

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 22, 2021

Decided and Entered: December 23, 2021

Goldberg Segalla, LLP, Albany (Jonathan M. Bernstein of counsel), for appellants.

Finkelstein & Partners, Newburgh (Marie M. DuSault of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

Garry, P.J. Appeals (1) from an order of the Supreme Court (Muller, J.), entered March 2, 2020 in Washington County, which denied defendants’ motion in limine, and (2) from an order of said court, entered February 5, 2021 in Washington County, which, upon reargument, partially adhered to its prior decision.

For a few months before he died, Bert Dwain Butler Sr. (hereinafter decedent) was a resident of defendant Fort Hudson Nursing Center, Inc., a residential health care facility that is operated by defendant Fort Hudson Health System, Inc. Plaintiff, as administrator of decedent's estate, commenced this action alleging four causes of action: (1) violations of Public Health Law §§ 2801-d and 2803-c, coupled with a claim for punitive damages and counsel fees (see Public Health Law § 2801–d [1], [2], [6] ); (2) negligence and gross negligence; (3) conscious pain and suffering; and (4) wrongful death. After a jury trial was scheduled and plaintiff submitted a proposed verdict sheet, defendants filed a motion in limine, as relevant here, to preclude plaintiff from presenting (1) separate interrogatories on the verdict sheet with respect to decedent's right to recover for "physical harm, emotional harm and death" pursuant to Public Health Law § 2801–d and the wrongful death and survivorship statutes, and (2) a claim for damages under Public Health Law § 2801–d cumulatively with claims for "conscious pain and suffering" pursuant to the wrongful death and survivorship statutes (see generally EPTL 5–4.3[a] ; 11–3.3[a]). Supreme Court denied defendants’ motion ( 67 Misc.3d 1204[A], 125 N.Y.S.3d 839 [2020] ). On defendants’ subsequent motion to reargue, the court granted reargument but adhered to its original decision as to all issues relevant here ( 71 Misc.3d 275, 142 N.Y.S.3d 714 [2021] ). Defendants appeal from the court's original order and its order upon reargument.¹

Defendants contend that Supreme Court committed reversable error in interpretating Public Health Law § 2801–d to include death of a nursing home patient as an injury for which damages may be recovered. "When presented with a question of statutory interpretation, ... [t]he statutory text is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning" ( Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 [citations omitted]; see Desiderio v. Ochs, 100 N.Y.2d 159, 169, 761 N.Y.S.2d 576, 791 N.E.2d 941 [2003] ). Courts must "construe the provisions of the challenged law together unless a contrary legislative intent is expressed, and harmonize the related provisions in a way that renders them compatible" ( Board of Trustees of the Vil. of Groton v. Pirro, 152 A.D.3d 149, 153, 58 N.Y.S.3d 614 [2017] [internal quotation marks, ellipsis and citations omitted]; see Nadkos, Inc. v. Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 N.Y.3d 1, 7, 108 N.Y.S.3d 375, 132 N.E.3d 568 [2019] ; Hernandez v. State of New York, 173 A.D.3d 105, 111, 99 N.Y.S.3d 795 [2019] ).

As pertinent here, Public Health Law § 2801–d (1) provides that "[a]ny residential health care facility that deprives any patient of said facility of any right or benefit ... shall be liable to said patient for injuries suffered as a result of said deprivation, except as [otherwise] provided.... 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." Public Health Law § 2801–d (2) states that, "[u]pon 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 ..., compensatory damages shall be assessed in an amount sufficient to compensate such patient for such injury, but in no event less than [25%] of the daily per-patient rate of payment established for the residential health care facility under [ Public Health Law § 2807 ] ... 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."

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." This plain reading of the unambiguous language is supported by the legislative history, which identifies the statute's purposes of protecting the rights of nursing home patients and deterring facilities from violating those rights (see e.g. Governor's Program Bill No. 42, Bill Jacket, L 1975, ch 658 at 18–19). Thus, decedent had a cause of action against defendants for his death. He obviously could not personally prosecute an action after his death, but "[n]o cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent" ( EPTL 11–3.2[b] ). It thus appears that plaintiff, as administrator of decedent's estate, properly commenced this action on his behalf to recover for the injury of his death.

Defendants assert that the common law, as well as the wrongful death and survivorship statutes, limit the claims that nursing home patients and their estates may bring to causes of action for injuries that accrued before death (see EPTL 11–3.3[a] ), and that surviving family members are limited to recovering the amount that a factfinder "deems to be fair and just compensation for the pecuniary injuries resulting from the decedent's death to [those family members]" ( EPTL 5–4.3[a] ). Indeed, New York's common law "does not recognize suits to recover damages for the wrongful death of an individual" ( Liff v. Schildkrout, 49 N.Y.2d 622, 632, 427 N.Y.S.2d 746, 404 N.E.2d 1288 [1980] ; see Sand v. Chapin, 238 A.D.2d 862, 863, 656 N.Y.S.2d 700 [1997] ); rather, "all causes of action arising from the death of an individual must be maintained in accordance with statutory authority" ( Liff v. Schildkrout, 49 N.Y.2d at 631, 427 N.Y.S.2d 746, 404 N.E.2d 1288 ). Further, "[t]he wrongful death statute created a new cause of action based not upon damage to the estate of the deceased because of death, but rather for the pecuniary injury to the surviving spouse and next of kin of the decedent" ( id. at 632–633, 427 N.Y.S.2d 746, 404 N.E.2d 1288 [internal quotation marks and citations omitted]; see EPTL 5–4.3[a] ; Sand v. Chapin, 238 A.D.2d at 863–864, 656 N.Y.S.2d 700 ). Defendants’ argument – which limits the available options to the common law and two statutes addressing recovery after death, inexplicably ignoring other statutes addressing this topic – would result in holding that decedent would not be entitled to any damages for his death. However, this result would be contrary to the plain language of Public Health Law § 2801–d (see Matter of Springer v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 27 N.Y.3d 102, 107–108, 29 N.Y.S.3d 897, 49 N.E.3d 1189 [2016] ; Matter of Matzell v. Annucci, 183 A.D.3d 1, 6, 121 N.Y.S.3d 153 [2020] ). The Legislature enacted that statute in derogation of common law, and courts must apply it as written (see generally Shanahan v. Monarch Eng'g Co., 219 N.Y. 469, 481, 114 N.E. 795 [1916] ).

Defendants further argue that redress for injuries defined under Public Health Law § 2801–d (1) is limited to "compensatory damages" (or punitive damages, if they can be established) (see Public Health Law § 2801–d [2] ), and compensatory damages are generally limited to those provided by the wrongful death and survivorship statutes. As noted above, the wrongful death and survivorship statutes do not permit damages to a person for his or her own death. Hence, imposing here the limits urged by defendants would render meaningless a nursing home's potential statutory liability to a patient for his or her death.

Although "when a word having an established meaning at common law is used in a statute, the common law meaning is generally followed" (McKinney's Cons Laws of NY, Book 1, Statutes § 233, Comment; see Chauca v. Abraham, 30 N.Y.3d 325, 330–331, 67 N.Y.S.3d 85, 89 N.E.3d 475 [2017] ), "the provisions of the applicable statutory scheme must be construed together and harmonized in a way that renders them compatible and achieves the legislative purpose" ( Matter of Covert v. Niagara County, 172 A.D.3d 1686, 1688, 102 N.Y.S.3d 131 [2019] ). Doing so here, the portion of the statute providing for minimum daily damages must be read to apply to non-death injuries, which can be calculated for each day that the patient was deprived of a right or benefit; for the injury of a patient's death, that minimum does not apply and "compensatory damages shall be assessed in an amount sufficient to compensate such patient for such injury" (Public Health Law § 2801-d [2]; compare General Municipal Law §§ 205–a [1] ; 205–e [1] [setting minimum monetary amount that a liable party must pay to a decedent's surviving heirs]).² "Such a reading clearly gives effect to each and every part of the statute and avoids...