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Protecting The Disabled

Deaths of residents in homes for the developmentally disabled in New York are disproportionately higher than other states. Many deaths in New York are unreported or the cause of death is listed as 'unknown'. These deaths, often from choking, drowning, falling, fire and runaways, result from the State's failure to report reliable statistics as to the causes of deaths, failure to appreciate deficiencies in the care of residents, and failure to administer statewide protocols and regulations to prevent recurring maltreatment.

The State Commission on Quality of Care and Advocacy for Persons With Disabilities is an agency responsible for overseeing treatment for developmentally disabled people. According to its data, 10% of the 7,118 deaths of developmentally disabled people who died in state care over the past decade were caused by 'unknown' circumstances. The data for the other deaths described only the broad manner in which they died, such as homicide, suicide, accident, or natural causes. In New York, 1 in 6 deaths of developmentally disabled people in state and private care are from reasons other than natural causes. Compare that with 1 in 25 in Connecticut.

Research performed by the New York Times found that some of the deaths listed as from 'unknown' causes involve patients whose deaths were caused by disregard by the staff. Many documented cases include staff ignoring specific instructions to supervise during eating because certain patients are high choking risks. The Times reported that James Michael Taylor, who was 41 years old and a quadriplegic lived in a home for the developmentally disabled near Schenectady, N.Y. James required the constant attention of a staff member during bathing. One night, he was left alone in a bathtub with the water running. The water slowly rose over his head and he drowned. In another institution, two residents drowned in a bathtub within four months of each other. In both cases, there had been concerns that the institution was understaffed. In another institution in Wells, N.Y. a fire killed four of the nine residents. After the Fire Department's arrival, numerous residents re-entered the burning home. It was discovered that group homes were permitted to meet buildings codes akin to those of homes with able-bodied residents, as opposed to more stringent fire standards for hospitals and institutions which accommodate residents who do not know they should flee from fire. The Fire Department was not aware that this was a home for the developmentally disabled and was unprepared for that situation.

Due to a lack of proper oversight unsafe conditions continue. Governor Cuomo recently forced the resignation of two commissioners of the two agencies that oversee the developmentally disabled. Other states take broader action. Ohio issues a statewide alert after an increase in choking deaths in 2006. California began an educational program that reduced deaths. State officials in New York cannot even agree on how many people are dying. The State has no uniform training for workers and rarely implements system-wide steps to prevent mistakes from recurring.

Connecticut analyzed death records for problems in care that could be prevented. Connecticut also developed a statewide program with initial training and refresher courses every two years. Connecticut had just one choking death since 2007, compared to 21 in NY during that same period. NY spends $10 billion a year caring for these people, more than California, Texas, Florida, and Illinois combined, while providing services to fewer than half as many as those states do.

Victims of nursing home maltreatment and neglect may have claims against the nursing home for monetary damages. Where the owners or operators of a nursing home deviate from accepted standards of care and cause injury, they are liable for damages. In addition to ordinary negligence claims, the New York Code, 10 NYCRR § 415, contains specific statutory minimum standards for medical treatment, physical environment, and quality of life in nursing homes. N.Y. Pub. Health Law § 2801 grants private individuals a private right of action against a nursing home for violations of any codes, rules, statutes, or regulations. Although residents often do not have economic losses as they are unemployed, they still have claims for conscious pain and suffering and punitive damages. The State is liable for the negligence of a facility which it owns and operates. Such claims against the State must be commenced in the Court of Claims and a notice of intention to file a claim must be served within 90 days of the incident. Lawsuits against privately owned nursing homes must be commenced within 3 years from the date of the accident if claim is for ordinary negligence. If the claim is for medical malpractice the lawsuit must be brought within 2 ½ years of the date of the malpractice. If the claim is for wrongful death it must be brought within 2 years of death.

Weisfuse & Weisfuse, LLP has extensive experience in representing patients who are the victims of nursing home maltreatment. If you or someone you know has been injured as a result of poor nursing home care, contact us for a free consultation.

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