Eladia Ciprian, an 80-year-old patient at St. Barnabas Rehabilitation and Continuing Care Center, will not have her case dismissed for the center’s failure to correctly diagnose and treat a hematoma in her right bicep. A Bronx County Supreme Court judge decided not to dismiss the case after the center claimed she made no proof of the nursing home’s neglect or deprivation of her rights.
Rather than bringing a medical malpractice suit against the center, Ms. Ciprian filed a claim under Public Health Law § 2801-d. The law allows a private right of action based on the willful deprivation of certain rights of patients by nursing homes and other residential facilities. The rights of the statute protect a patient’s right to appropriate medical care, to be informed of their medical condition, and to have private communications with physicians or lawyers. Under the statute, the burden of proof is placed on the defendant to show that they did not deprive the patient of any of the previously stated rights. The shift of the burden provides a greater advantage to a patient under the statute than a medical malpractice suit, which places the burden on the plaintiff.
Ms. Ciprian states that, after having an amputation in her right leg, phlebotomists drew blood from her right arm for 12 straight days to see how the amputation was progressing. The staff of the center stated that Ms. Ciprian’s records did not show that multiple blood draws were ordered during the time. The complaint alleges that the neglect of the staff in providing adequate records led to the development of the hematoma. Furthermore, the staff’s records following the blood draws fail to show any documentation of the hematoma’s emergence. While remaining in the center’s care, Ms. Ciprian was admitted to the emergency room to evacuate the 800-milliliter hematoma to avoid amputation of her arm.
In reviewing the motion to dismiss, the court disagreed with the center’s argument and stated that there are triable issues as to whether Ms. Ciprian was properly treated. The court noted that the trial will go forward to answer the question of whether the center deprived Ms. Ciprian of any private right or benefit. If Ms. Ciprian is successful in proving her claim at trial, the statute allows for compensatory damages of no less than 25 percent of the daily rate the patient was paying to be in the facility, in addition to legal fees.
Taking proper care of the disabled and elderly in our society who depend on us is of the utmost importance. If you have questions about the care of a disabled or elderly loved one, contact an experienced New York elder law attorney who can help. For more information, contact Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.