Julie Bargnesi successfully obtained a directed verdict for a nursing home client at trial. The case alleged development and worsening of decubitus ulcers. In support of their case, plaintiff called a nursing expert as well as a physician expert. At the close of plaintiffs proof, Ms. Bargnesi brought a motion to dismiss all claims against her client arguing that the plaintiff did not meet their burden of proof. The trial court granted the motion and her client was dismissed from the case prior to jury deliberations.
It is believed that this is the first directed verdict at trial in favor of a nursing home case in New York State.
Bargnesi Britt PLLC, has extensive experience defending nursing homes, hospitals, physicians and other medical providers in cases of alleged malpractice.
Please feel free to contact the firm if you would like additional information at firstname.lastname@example.org.
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.
On April 5, 2021, a new federal rule, known as the “CURES Rules” was enacted and requires US healthcare providers to give patients access to all the health information in their electronic medical records without charge. This new information sharing rule from the 21st Century Cures ACT mandates rapid, full access to test results, medication lists, referral information, and clinical notes in electronic formats, on request.
Back in 1996, the Health Insurance Portability and Accountability ACT gave patients the legal right to request and receive copies of their records, but this takes time, effort, and money. The new information sharing rule will enable anyone receiving healthcare in the US free, timely access to both ambulatory and inpatient care records through secure online portals. The new legislation also stipulates that people should be able to download their data to third party digital applications (apps) and aggregate all their health records into their digital platform of choice.
Studies show that patients who read what is written about them by clinicians feel more involved in and knowledgeable about their care, feel better prepared for visits, and report being more likely to follow their clinicians’ advice. These results are consistent across ethnic groups, gender, socioeconomic status, and education, and the same benefits accrue to family caregivers.
The “CURES Rules” preclude health care providers from information blocking which is defined as a practice that is likely to interfere with the access, exchange, or use of electronic health information (EHI) with eight defined exceptions, the most common being: preventing harm, privacy, security, infeasibility, IT performance, and content and manner.
Finally, the new rule still does not change who owns health records outright. Records remain the property of hospitals or doctors in half of all US states. Laws in the remaining states view records as having shared ownership with patients.
US healthcare organizations should comply with the rule in a way that helps ensure patients know about their enhanced right to access and use their health information for empowerment and engagement. This is best accomplished by enacting written policies and procedures addressing the new requirements of the CURES ACT. For additional information, please contact Bargnesi Britt PLLC at firstname.lastname@example.org.