Opinion
4064801
Decided September 24, 2004.
Upon the foregoing papers, plaintiff in this medical malpractice action moves pursuant to CPLR 3025(b) and CPLR 203(f) for an order granting plaintiff leave to amend the complaint to assert claims for deprivation of statutory rights and benefits provided for under NY Public Health Law § 2801-d and 2803-c, and 10 NYCRR 415.12 against defendant Augustana Lutheran Homes ("Augustana"). Augustana cross-moves for an order denying plaintiff's motion and granting leave to amend defendant's answer to add specified affirmative defenses.
The court has previously orally denied the motion to amend the complaint, and this decision and order serves to set forth the reasons for said denial.
Background
Plaintiff's decedent Georgina Hernandez was a patient at Lutheran Medical Center, under the care of Dr. Chen, and also was a patient at Augustana Lutheran Home on several occasions commencing July 13, 2000. Plaintiff alleges that due to the negligence and medical malpractice of the defendants plaintiff's decedent suffered serious physical injuries, including: fractures of her left and right legs, fracture of her left arm, multiple Stage II, III and IV decubitis ulcers, uncontrolled diabetes, sepsis, gangrene, above the knee left leg amputation, medication overdose, internal bleeding, and her eventual death.
Plaintiff seeks to asserts claims based upon a statutory right of action under NY Public Health Law §§ 2801-d and 2803-c, which plaintiff alleges arises when a person is deprived of the rights and benefits conferred by 10 NYCRR § 415.12. Plaintiff claims that her decedent was deprived of "quality of care" as defined and granted by 10 NYCRR § 415.12, and that this deprivation was a cause of the identical list of serious injuries just enumerated, i.e., fractures of her left and right legs, fracture of her left arm, multiple Stage II, III and IV decubitis ulcers, uncontrolled diabetes, sepsis, gangrene, above the knee left leg amputation, medication overdose, internal bleeding, and her eventual death. Plaintiff claims that these deprivations give rise to a separate cause of action under NY Public Health Law §§ 2801-d and 2803-c.
Analysis
Leave to amend a complaint should be freely given, unless the party opposing the motion can demonstrate prejudice or surprise from the delay, and mere delay, absent a showing of prejudice, is insufficient to deny such leave ( Moon v. Long Beach Mem. Hosp., 173 AD2d 527). The plaintiff's motion must be accompanied by an affidavit showing the merit of the proposed amendments, and by an affidavit showing reasonable excuse for the delay in seeking leave to amend the complaint ( Alexander v. Seligman, 131 AD2d 528, 528; Schroeder v. Brooklyn Hosp., 119 AD2d 564-565, lv denied 68 NY2d 603). However, the Appellate Division, Second Department has stated that "on the eve of trial, judicial discretion in allowing such an amendment should be discreet, circumspect, prudent and cautious" ( Alexander v. Seligman, id.).
A Note of Issue was filed on August 12, 2003 in this action. This case has been placed on the trial calendar, and a date has been set on which jury selection will commence. By way of providing reasonable excuse for the delay in seeking leave to amend the complaint, plaintiff cites to a purported change in the law which plaintiff claims now makes "it proper to separately allege an independent cause of action for deprivation of patient rights under Section 2801-d of the NY Public Health Law and N.Y.C.R.R. Section 4.5.12" (sic) (Affirmation of Bruce J. Ressler, Esq. in support of the motion to amend, ¶ 34). Plaintiff claims that the rule set forth in Goldberg v. Plaza Nursing Home Comp., 222 AD2d 1082 [4th Dept 1995]), which had prohibited a separate cause of action for a "quality of care" violation, has been changed by subsequent case law.
In Goldberg, decedent was a patient who was placed in a restraint vest while she took a nap. Upon wakening, decedent summoned defendant's employees to release her from the vest. When defendant's employees ignored her calls for help, decedent became agitated and tried to release herself from the vest. Decedent then was either strangled by the vest or became so agitated that she suffered cardiac arrest. The amended complaint contained causes of action for wrongful death, negligent infliction of emotional distress, intentional infliction of emotional distress, and a violation Public Health Law § 2801-d. In holding that the lower court should have granted summary judgment dismissing the cause of action based on the Public Health Law, the court stated:
The record establishes that plaintiff's fourth cause of action is predicated on defendant's negligence. The various memoranda that accompanied the enactment of Public Health Law § 2801-d show that the purpose of that section was to provide a remedy to patients in residential health care facilities who are denied the rights and benefits enumerated in Public Health Law § 2803-c (3); the purpose was not to create a new personal injury cause of action based on negligence when that remedy already existed (see, 1975 McKinney's Session Laws of NY, at 1685-1686, 1764; accord, Begandy v. Richardson, 134 Misc 2d 357, 360-361). Here, plaintiff possessed the right to bring a wrongful death action predicated upon defendant's negligence notwithstanding the enactment of that section. Thus, we conclude that to give Public Health Law § 2801-d the interpretation urged by plaintiff would authorize a cause of action under that section for every case based upon negligence and implicating a residential health care facility. Further, we conclude that it is unlikely that the Legislature envisioned extension of the principle of strict liability to residential health care facilities for injuries and damages that are traditionally the subject of tort liability. ( Goldberg v. Plaza Nursing Home Comp., 222 AD2d 1082, 1084).
In Doe v. Westfall Health Care Center, Inc., ( 303 AD2d 102), the Appellate Division, Fourth Department declined to recognize the reasoning of its decision in Goldberg, and recognized a cause of action under Public Health Law § 2801-d. The court stated that ". . . we conclude that the clear intent of section 2801-d was to expand the existing remedies for conduct that, although constituting grievous and actionable violations of important rights, did not give rise to damages of sufficient monetary value to justify litigation." ( Doe v. Westfall Health Care Center, Inc., id., at 109).
It is important to note the facts in the Doe case. Plaintiff was the administratrix of her daughter Katherine's estate. During the 12 years before her death, Katherine was in a chronic vegetative state as the result of an automobile accident. Plaintiff placed Katherine in the Westfall Health Care Center, Inc., a skilled care nursing home. While a resident there, Katherine was raped by a male health care aid and became pregnant. She was transferred to a hospital where she gave birth to a baby boy. Katherine died the following year of causes unrelated to the pregnancy. Plaintiff adopted the baby and was raising him, and the health care aid was convicted of various crimes as a result of the rape and was incarcerated.
The court in Doe found that this conduct — the rape of Katherine-was precisely the type of conduct that Public Health Care Law § 2801-d was designed to target. The court observed that recovery for this type of conduct is often barred at common law, since the plaintiff in Doe could not sue the health care facility on either a theory of respondeat superior or strict liability. While plaintiff might have a cause of action for negligent hiring, the court noted that such cases involving sexual assaults upon patients often founder because of the absence of the element of foreseeability, due to the facility's lack of prior knowledge of the perpetrator's criminal tendencies.
The facts in the case at bar are far different, as the injuries for which plaintiff seeks to add a cause of action under the Public Health Law are identical to the type of injuries which are being claimed in the negligence and medical malpractice causes of action. The parties have not cited, and this court has not found, any case in which the Appellate Division, Second Department has addressed this issue.
Those reported cases which address this issue are either distinguishable ( Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178 (1st Dept 2002) [while stating that the complaint states a cognizable cause of action under the Public Health Law, the court affirmed denial of defendant's motion for summary judgment, and ruled that defendant could reassert the summary judgment motion after discovery was completed; the dissent points out that the parties did not address whether plaintiff had stated a cause of action under the statute, citing Goldberg, and the dissenters felt that the court need not and should not address the issue]; Fleming v. Barnwell Nursing Home Health Facilities, Inc., 309 AD2d 1132 (3rd Dept 2003) [while the court held that the trial court properly gave plaintiff leave to amend the complaint to add a cause of action under Public Health Law § 2801-d, since the delay between the complaint and the amendment was only four months, little discovery had taken place, and defendant was fully aware of Department of Health violations through the DOH report which was completed prior to the commencement of the action, the gravamen of the court's holding dealt with the question whether the Public Health Law cause of action should have been certified as a class action pursuant to CPLR 902]; Barnes v. Lawrence Nursing Care Center, Inc., 2 Misc 3d 337 (Sup.Ct. Kings Cty. 2003) [while the court noted that plaintiff's claim for damages for pain and suffering was predicated, in part, on Public Health Law 2801-d, the decision addresses whether Public Health Law 2801-d effected a waiver of Medicaid liens in actions asserted thereunder]; see also, Jacobs v. Newton, 1 Misc 3d 171 (Civil Court of the City of New York, Kings Cty. 2003)), or hold that there is no independent cause of action under Public Health Law § 2801-d under the facts presented ( Bielewicz v. Maplewood Nursing Home, Inc., 4 Misc 3d 475 (Sup.Ct. Monroe Cty. 2004) [states that the court in Doe used careful language to show that the exception manifested by the facts in that case was not meant to authorize a private cause of action in every negligence case; rather, in a case where there is no difficulty with plaintiff's proof or any bar to recovery, if negligence is found, then Goldberg was not overruled by the court in Doe and the Goldberg rule applies]; Bergandy v. Richardson, 134 Misc 2d 357 (Sup.Ct. Monroe Cty. 1987) [found that plaintiff could not amend the complaint to add a cause of action under Public Health Law § 2801-d where plaintiff wandered down a hallway at the nursing home and fell down a cellar stairway; the purpose of that section was to create a private cause of action where no such right previously existed, and plaintiff's right to bring a personal injury action on these facts clearly existed prior to the passage of that section]).
As noted, the case which plaintiff relies on is Doe v. Westfall Health Care Center, Inc., ( 303 AD2d 102), which was decided by the Appellate Division, Fourth Department in December of 2002. Plaintiff offers no reason whatsoever why this amendment was not sought until March 2004 when the instant motion was filed. Plaintiff had listed 10 NYCRR 415.12 and the applicable sections of the Public Health Law, along with numerous other statutes allegedly violated by Augustana, in the Verified Bill of Particulars which is dated April 16, 2002. Also relevant is the issue of prejudice, due to the fact that plaintiff is seeking to add a cause of action based on a violation of the Public Health Law at this late stage, after discovery is complete, the pertinent EBT's of the plaintiff and of Dr. Chen have been completed, and the case is scheduled for trial.
Because, under the facts presented in this case, the court is not prepared to find that a separate cause of action exists under Public Health Law § 2801-d, and since plaintiff has made this application at this late date and has failed to offer a reasonable excuse for the delay in seeking leave to amend the complaint, the motion for leave to amend the complaint is denied.
The cross-motion by defendant seeking leave to amend the answer — in the event that leave is granted to the plaintiff to amend the complaint — is denied as academic.
This constitutes the decision and order of the court.