November 13, 2003 - Nursing Home Ruling May Open Door to Tort Class Actions

---

An appellate panel in Albany has recognized a rarely -- if ever -- invoked provision of Public Health Law that permits class actions against nursing homes for depriving residents of basic necessities like adequate heat, edible food, privacy and socialization.

The provision, Public Health Law §[2801-d, is a potential bonanza for plaintiffs' attorneys because it includes counsel fees and provides for a potentially substantial minimum recovery -- a base sum for each day the injury exits. This month, the Appellate Division, Third Department, allowed an attorney to amend his complaint to include §[2801-d, and reversed a trial court in granting class certification.

Fleming v. Barnwell Nursing Home and Health Facilities Inc., 93758, arose after Elizabeth Lagai died on Nov. 26, 1999. Mrs. Lagai, a resident of the Barnwell Nursing Home in Valatie, Columbia County, died of septic shock, allegedly because she was neglected by the nursing home staff.

Two months after her death, the New York State Department of Health issued a 24-page statement of deficiencies at the nursing home. The estate then brought an action against the home and Mrs. Lagai's physician alleging negligence, medical malpractice and wrongful death. Four months later, plaintiff's counsel moved to amend the complaint to include a §[2801-d claim and to seek class certification. Supreme Court Justice John G. Connor approved the amendment but denied the class action.

Class Should Be Certified

On appeal, the Third Department agreed that the complaint was properly amended to encompass §[2801-d. But the unanimous court, through Justice Anthony T. Kane, went further, saying the class of roughly 200 nursing home residents should be certified. Although Mrs. Lagai's estate must pursue the medical malpractice and negligence actions individually, it is now part of a large class of potential plaintiffs complaining of denial of basic human needs. The certification covers residents of the facility during Mrs. Lagai's one-year stay.

Counsel for the defendants, Anthony Rotondi of Donohue, Sabo, Varley & Armstrong in Albany, said the §[2801-d remedy is one that had previously "fallen under the radar," but with the Third Department's decision could become a boiler-plate cause of action in nursing home cases.

"With the provision for attorney fees, I think you will see a lot of plaintiffs' attorneys looking at a cause of action, and possibly a class action, under the Public Health Law," he said. "As difficult as it may be to prevail on the [medical malpractice] action, it might be easier to maintain this type of action because you automatically have a question of fact. You are not going to get shut out on summary judgment."

Also on the panel were Presiding Justice Anthony V. Cardona and Justices Thomas E. Mercure, Anthony J. Carpinello and Robert S. Rose.