A common obstacle in medical malpractice and LTC litigation is discrepancy between wound descriptions at the time of discharge and transfer between institutions. As highlighted here (CMS prods hospitals to improve discharge info for SNFs, home health, via McKnights) recent CMS guidance may improve the quality of discharge information received by post-acute providers, including as it relates to wounds, mental illness, durable medical equipment (including wound vacs), and patient care preferences.
CMS published anticipated changes relaxing COVID-19 vaccination requirements for the staff of LTC Facilities. A copy of the policy and regulatory changes is available here:
Of note, the rule summary indicates that “CMS intends to encourage ongoing COVID-19 vaccination through its quality reporting and value-based incentive programs in the near future.”
Under the current New York wrongful death statute, only a personal representative of a deceased person can bring a suit for negligence, malpractice and intentional torts and the allowable damages are quite limited. In New York, a suit can only be brought by a child, parent, spouse, or personal representative of the estate and there is no award for a family’s emotional suffering resulting from the wrongful death.
Currently, a representative can only seek recovery for economic or pecuniary losses, medical and funeral expenses, and the value of parental guidance.
Recent attempts to expand New York’s wrongful death statute were met by the veto of Governor Hochul in 2022.
On May 2, 2023 revised proposed legislation was submitted in an attempt to address Governor Hochul’s concerns. The newest proposal curtails some, but not all aspects of the 2022 proposed amendment.
The current proposal would allow spouses, domestic partners, children, foster children, stepchildren, step grandchildren, parents, grandparents, stepparents, step grandparents, siblings, or anyone acting in loco parentis to the deceased person to bring a wrongful death action. Although this is a significant expansion of the individuals currently permitted to bring a wrongful death action, it is more limited than the proposal of 2022.
The new proposal, like the one in 2022, significantly expands allowable damages to include the loss of love, society, protection, comfort, companionship, and consortium resulting from the death.
In addition, the statute of limitations in the 2023 proposal is expanded to three years from the date of death.
Most concerning is that the proposed legislation would apply retroactively to any claim occurring on or after July 1, 2018, regardless of when a suit was filed. It is this aspect of the proposal which will probably face the strongest opposition, as it will increase the value of existing pending suits and undoubtedly increase the cost of litigation.
For additional information, please contact Bargnesi Britt PLLC at email@example.com.