Cases of Interest:

• Zeides v. Hebrew Home for the Aged
• Spakoski v. Amsterdam Memorial, et. al.
• Assisted Living Facility Case of Elizabeth Pelletier
• The Wrongful Death of Mario Acito A Case of Nursing Home Neglect

Zeides v. Hebrew Home for the Aged *

This decision has expanded the rights of nursing home residents claiming violations of the rights given to them by New York's Public Health Law under §2801-d. In many instances, nursing home residents have been deprived of their statutory rights. These rights include such things as the right to have an environment free of accident hazards. Zeides held that a nursing home resident has three (3) years to bring a lawsuit for deprivation of these rights, instead of the two and one-half (2 1 /2) year limitation of medical malpractice actions.

While the New York Court of Appeals** has not yet had the opportunity to address the time limitation, lawsuits alleging violations of resident rights in the First Department (which includes Bronx and New York counties) will have three (3) years to bring the suit. Furthermore, the Second Department (which includes Dutchess, Kings, Nassau , Orange , Putnam, Queens , Richmond , Rockland , Suffolk , and Westchester counties) has cited to this case in Young v. A. Holly Patterson Geriatric Ctr. , 2005 NY App. Div. LEXIS 4379. Other decisions, both at the trial and Appellate level, have cited to this case since it was decided in December 2002.

In Zeides , a lawsuit was brought against the nursing home for, among other things, violations of the resident's rights set forth in the New York Public Health Law. The nursing home asked the Court to grant summary judgment and dismiss the claim as barred by the statute of limitations.*** They claimed that the lawsuit was subject to a 2 1 /x year statute of limitations the same as a medical malpractice action is. The Plaintiff claimed that the lawsuit was instead governed by the 3-year statute of limitations as negligence actions are. The Supreme Court agreed with the Plaintiff and held that the suit was governed by 3 years. The nursing home then appealed the decision to the Appellate Division, First Department, who ultimately agreed with the Supreme Court and affirmed its decision.

* - Zeides v. Hebrew Home for the Aged at Riverdale, Inc. , 300 A.D.2d 178 (1 st Dept., 2002). Sean J. Doolan, Esq. is the attorney of record for the Plaintiff in this matter.

** - The New York Court of Appeals is the highest court in New York State . This Court is analogous to the United States Supreme Court with respect to federal claims. Therefore, the Court of Appeals has the final say as to questions of New York State law.

*** - Statute of Limitations refers to those provisions in the New York State Civil Practice Law and Rules that prescribes how long a person has to bring a lawsuit for designated types of actions.
Read Zeides Brief
Zeides Decision from First Department

This decision made a significant impact on a resident's ability to obtain copies of any incident or accident reports generated by a nursing home when a resident suffers an accident while in the nursing home. The Supreme Court held that these documents are not privileged material and therefore the Plaintiff could not be precluded from using them at the trial.

The case involved a nursing home resident's injuries sustained in a fall at the nursing home. When the Plaintiff requested a copy of her records from the nursing home, a purported "Occurrence Capture Worksheet" was included in those records produced. The nursing home later asked the Court to preclude the Plaintiff from using that worksheet at the trial, claiming it was privileged communication under New York's Public Health Law §2805-1 (which deems all documents generated for solely quality assurance purposes as privileged and not subject to disclosure.)

The Court ruled against the nursing home and refused to preclude the Plaintiff from using the worksheet. The Court held "[The Defendants'] argument is misplaced because Public Health Law §2805-1 only applies to a general hospital, a classification that does not include a nursing home." Furthermore, the Court agreed with the Plaintiff's expert that the worksheet had been prepared to satisfy a New York State requirement that nursing homes maintain incident or accident reports with respect to any accident involving a patient.**

The Court cited to the New York State Court of Appeals decision in Matter of Subpoena Duces Tecum to Doe , 99 NY2d 434 that clearly held that the requirement to keep those incident or accident reports had no express relationship to quality assurance. The Court then looked to the worksheet and found that it "mirrored" the State requirements and did not obtain privileged status by simply naming it a quality assurance document.

* - Spakoski v. Amsterdam Mem. Hosp. Skilled Nursing Fac. and Amsterdam Mem. Hosp., Inc. , 2005 NY Slip Op. 25021 (Sup. Ct., Jan. 3, 2005)(Hon. Joseph M. Sise, Montgomery County). Sean J. Doolan, Esq. is the attorney of record for the Plaintiff in this matter.

** - 10 NYCRR 415.30(f).
Read Spakoski Decision

Ms. Pelletier, an 89 year old woman, wandered from an upstate assisted living facility in February, 2003. She was missing for four hours before staff noticed and contacted authorities. Unfortunately, by the time she was found, she had died due to exposure to the winter elements. An investigation by the Law Offices of Sean J. Doolan revealed that the facility was not licensed by the Department of Health even though they advertised as an assisted living facility. The facility claims it was acting as a landlord, and as such, owed no duty to Ms. Pelletier. This case illustrates the need for regulation of assisted living facilities.

This case was was scheduled for trail in 2007 but was settled for $350,000 immediately prior to jury selection.

After two years of litigation, the case of Mario Acito settled before trial. On September 19, 2001, Mario Acito, 84 years old, died as a result of a nursing home's negligence.

As a World War II veteran suffering from dementia and a stroke, Mr. Acito was profoundly affected by the terrorist attacks of September 11, 2001. He believed that he needed to protect the staff and residents of the nursing home from future attacks. As a result, Mr. Acito became extremely anxious at night and had difficulty sleeping.

The nursing home should have developed a care plan to address Mr. Acito's anxiety. Instead, his care plan called for placing him in the dining room, behind closed doors, alone and unattended all night long. For hours on end, he sat watching CNN's coverage of the terrorist attacks. Being insensitive to Mr. Acito's fears, he was left with a channel changer in his hand, and after several days of watching the coverage, his anxiety increased. He began yelling that he was going to get the terrorists and on several occasions attempted to get out of his wheelchair. The nursing home did nothing to alleviate Mr. Acito's anxiety. On September 16, 2001, in an effort to get the terrorists, he fell from his wheelchair, which resulted in his death. The case settled after depositions were completed for a confidential amount.

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