Claimant's attorney: Rutberg & Associates, P.C. By: Richard Greenblatt, Esq.
Defendant's attorney: Hon. Andrew M. Cuomo for the State of New York. By: J. Gardner Ryan, Assistant Attorney General.
Terry J. Ruderman, J.
In May 2005, claimant was a resident at Hudson River Psychiatric Center, a psychiatric hospital operated by the New York State Office of Mental Health. Claimant had a history of mental illness and, due to her obesity and other physical conditions, she often required the assistance of a wheelchair. On May 21, 2005, claimant entered a shower, unassisted by an aide, and fell, sustaining injuries. On February 23, 2007, Claim No. 113362 was filed alleging that claimant's fall was attributable to defendant's negligence. Defendant's amended answer, filed-stamped April 23, 2007, asserted a counterclaim for the costs of claimant's care rendered by the New York State Office of Mental Health from May 2005 through April 2007.
A trial on liability was held and, upon submission of post-trial memorandum by the parties, a written Decision was rendered on January 29, 2010 and filed-stamped on March 10, 2010. The Court found defendant to be 100 percent liable for claimant's fall, on the theory of negligence, due to defendant's failure to take proper steps to safeguard claimant from entering the shower without the necessary assistance. The Court further found that defendant is entitled to recover the costs of services rendered which were not covered by Medicare and which were unrelated to claimant's fall.
Motion to Amend
A trial on damages was scheduled for August 9, 2010; however claimant's counsel was actually engaged elsewhere and, therefore, the trial was adjourned to November 8, 2010. A pretrial conference was held on September 20, 2010. Thereafter, claimant sought leave to amend her claim to assert a cause of action under Public Health Law §2801-d (Motion, Ex. A). Public Health Law §2801-d Private actions by patients of residential health care facilities "authorizes a private right of action for the violation of rights enumerated in §2803-c [ Rights of patients in certain medical facilities ] of the statute" (Ward v Eastchester Health Care Ctr., LLC, 34 A.D.3d 247, 248; see also Kash v Jewish Home & Infirmary of Rochester, NY Inc., 61 A.D.3d 146; Zeides v Hebrew Home for Aged at Riverdale, 300 A.D.2d 178).
This motion is returnable less than one month prior to the scheduled damages trial. Claimant has failed to provide any explanation for the delay in moving to amend until more than six months after the liability judgment was entered and weeks before the scheduled damages trial.
Defendant opposes the motion and argues that the cause of action created under Public Health Law §2801-d applies only to "residential health care facilities" and must be predicated upon a violation of the rights enumerated under Public Health Law §2803-c Rights of patients in certain medical facilities. Thus, defendant argues that this statutory cause of action, created under Article 28 of the Public Health Law, does not encompass Hudson River Psychiatric Center, which is not under the jurisdiction of the Commissioner of Health. Rather, the psychiatric center is under the jurisdiction of the Office of Mental Health and the rights of their patients are covered by Mental Hygiene Law §33.02 Notice of rights of the mentally disabled, which expressly applies to facilities operated or licensed by the Office of Mental Health (Mental Hygiene Law §33.02[a]). Further, defendant argues that a violation of the rights of the mentally disabled set forth in Mental Hygiene Law §33.02 is not a sanctioned predicate for liability pursuant to terms of the statutory cause of action created under Public Health Law §2801-d. Accordingly, defendant maintains that claimant's proposed amendment should not be permitted because it is insufficient as a matter of law and is not applicable to the facts of this case.
Absent prejudice or surprise, leave to amend shall be freely granted (CPLR 3025[b]; see Dickinson v Igoni, 76 A.D.3d 943; Lucido v Mancuso, 49 A.D.3d 220). An application to amend, however, should not be granted where the newly asserted claim is "palpably insufficient as a matter of law or is totally devoid of merit" (DeLouise v S.K.I. Wholesale Beer Corp., 75 A.D.3d 489, 491).
Here, claimant presents the novel issues of whether Hudson River Psychiatric Center, a psychiatric hospital operated by the Office of Mental Health, falls within the definition of "residential health care facilities" under the Public Health Law and, if so, whether the cause of action created under Public Health Law §2801-d may be predicated upon a violation of the rights of the mentally disabled enumerated in Mental Hygiene Law §33.02.
The applicability of Article 28 of the Public Health Law is set forth in §2800 and includes all institutions providing "hospital and related services * * * serving principally as facilities for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition or for the rendering of health-related service " (emphasis added). Claimant argues that mental illness is a "human disease" and that she was undergoing treatment for this condition while she was a resident at Hudson River Psychiatric Center. Thus, claimant contends that Hudson River Psychiatric Center is covered by Article 28 of the Public Health Law. Claimant's argument, however, is refuted by the plain text of the statute which specifically excludes mental health facilities from its definition of hospital. Indeed, §2801(1) provides that " the term hospital shall not include an institution, sanitarium or other facility engaged principally in providing services for the prevention, diagnosis, or treatment of mental disability and which is subject to * * * investigation of the department of mental hygiene" (emphasis added). Further, Public Health Law §2801-d Private actions by patients of residential health care facilities expressly applies only to "residential health care facilities, " which is a term more narrowly defined than the term hospital and is limited to a "nursing home or a facility providing health-related service" (§2801; see Matter of Massena, Town v Whalen, 72 A.D.2d 838, 839 [Public Health Law definition of hospital is "much more broadly defined" than the term residential health care facility]). "Health-related service" is defined as "physical care" provided in a facility which offers lodging (Public Health Law §2801[b]). Additionally, Public Health Law §2803-c Rights of patients in certain medical facilities expressly applies only to nursing homes and facilities ...