In its Decision and Order dated June 15, 2021, the Supreme Court of the State of New York Appellate Division, First Judicial Department (“New York Appellate Ciourt”) stated: “The trial court correctly granted plaintiff’s motion for a directed verdict on liability and causation on her Public Health Law (PHL) § 2801-d and nursing malpractice claims … [but] [t]he court should not have allowed the jury to award damages for pain and suffering without first determining that the decedent “experienced some level of cognitive awareness following the injury.””
The Underlying Facts
The plaintiff presented evidence that the decedent, who was a resident of the defendant nursing home, was found nonresponsive due to low blood sugar during the morning of October 22, 2011, was left unmonitored for hours thereafter, and was not taken to a hospital until that evening. The plaintiff also presented expert testimony that the defendant departed from the standard of care and from its own protocols by failing to appropriately monitor the decedent’s blood sugar levels or to timely send him to the hospital and that, as a result, the decedent suffered brain injury and death.
The defendant did not present any expert witnesses to rebut the plaintiff’s experts’ testimony, and its claims that the decedent might have been subject to additional, undocumented monitoring are purely speculative and unsupported by any evidence.
Public Health Law (PHL) § 2801-d
Public Health Law (PHL) § 2801-d states, in part: “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.”
The New York Appellate Court held in the case it was deciding: “While a jury could reasonably have concluded based on the weight of the credible evidence that the decedent had the requisite cognitive awareness, this is not the only reasonable conclusion that the jury could have drawn. By omitting any discussion of “consciousness” from its jury charge or the verdict sheet, the court essentially, and improperly, took this issue away from the jury.”
Source Smith v. Northern Manhattan Nursing Home, Inc., Case No. 2021-00642.
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