The law that applies to your claim
PHL §2801-d — a private right of action
A residential health care facility that deprives a resident of a right or benefit conferred by law is liable to that resident. This is a statutory claim, not ordinary negligence — it does not require expert proof of a medical departure, and it permits recovery of attorney’s fees and, in some circumstances, punitive damages.
PHL §2803-c — the residents’ bill of rights
Every resident has enumerated rights: adequate and appropriate medical care, freedom from mental and physical abuse, freedom from chemical and physical restraints used for discipline or convenience, dignity, and participation in their own care planning.
Federal standards — 42 CFR Part 483
Facilities accepting Medicare or Medicaid must meet federal requirements, including sufficient nursing staff and a comprehensive care plan for each resident. Survey deficiencies and inspection reports are public and frequently establish the pattern.
Most of this is understaffing, not cruelty
Families expect to find a bad actor. Far more often the cause is arithmetic: too few aides for too many residents, so a person who needs turning every two hours is turned twice a shift.
That is what produces the injuries these cases involve — pressure ulcers, dehydration, falls, unwitnessed wandering, medication errors. Staffing records, assignment sheets and the census are usually more revealing than any single incident report.
Signs worth acting on
- Pressure sores, particularly stage 3 or 4, which rarely develop with adequate care
- Unexplained falls, fractures or bruising, especially repeated
- Rapid weight loss, dehydration or untreated infection
- Sudden withdrawal, fearfulness or reluctance to be alone with particular staff
- Overmedication and sedation used in place of supervision
- Poor hygiene, soiled bedding and unanswered call bells
- Elopement — a resident leaving unnoticed
The record is larger than the chart
Beyond the medical chart there is a documentary layer families do not know to ask for: staffing and assignment records, the minimum data set assessments, care plans and their revisions, incident and fall reports, wound care logs with photographs, and Department of Health survey results for the facility.
Records are also amended. The electronic audit trail showing who entered what, and when, is often the most important document in the case.
How long you have to act
- Three years from the date of the accident for most negligence claims (CPLR §214).
- Two years for wrongful death (EPTL §5-4.1).
- 90 days to serve a notice of claim where a city, county, school district, transit authority or other public body is involved (General Municipal Law §50-e), with suit generally within one year and 90 days.
The 90-day rule is the one that quietly ends otherwise strong cases. If a public entity may be involved, that is the first thing to check — not the last.
What it costs
Nothing up front. These cases are handled on contingency: there is no fee unless we win, and the consultation is free. You will be told the percentage and how expenses are handled, in writing, before you sign anything.
Common questions
We signed an arbitration agreement on admission.
Worth reviewing rather than accepting. These agreements are not always enforceable, and admission to a facility generally cannot be conditioned on signing one.
Is this medical malpractice or something else?
It can be either, and the distinction matters because the deadlines differ. A PHL §2801-d claim and a malpractice claim have different periods and different proof requirements, so both should be assessed at the outset.
My relative died. Can we still bring a claim?
Yes. The estate may pursue the statutory claim along with wrongful death and survival claims. See our wrongful death page for how those work.
