Answers to the questions families ask us most often about nursing home neglect and abuse on Staten Island and in Brooklyn. If you want the broader picture first, start with our page on nursing home neglect and elder abuse.
Nothing here is legal advice about your own situation. If you are worried about someone right now, call us at (718) 701-2776 rather than working it out from a web page.
What the law actually gives you
Is a nursing home case the same as a medical malpractice case?
Not necessarily, and the difference matters a great deal.
New York gives nursing home residents a private right of action of their own, under Public Health Law § 2801-d. A facility that deprives a resident of a right or benefit granted by law or regulation is liable to that resident for the injuries suffered. You do not have to frame everything as a departure from a medical standard of care; you can point at the rule the facility broke.
That statute carries teeth that an ordinary negligence claim does not:
- Minimum damages. Compensatory damages are assessed at an amount sufficient to compensate the resident, and in no event less than 25 percent of the daily per-patient rate for each day the deprivation continued.
- Punitive damages are available where the deprivation was willful or in reckless disregard of the resident’s lawful rights.
- Attorney’s fees. The court may award them to the plaintiff based on the reasonable value of the legal services.
- The remedies are cumulative — in addition to, not instead of, any other rights the resident has at law or in equity.
We signed paperwork on admission. Did we give up the right to sue?
Not for a § 2801-d claim. The statute says it plainly: any waiver by a patient or their legal representative of the right to bring an action under that section is null and void and without legal force or effect.
Admission packets are long, they are signed at the worst possible moment, and families often assume something in there closed the door. On this particular right, it did not. Bring the paperwork and let someone read it.
Bed sores and pressure ulcers
My mother developed a bed sore in the home. Does that mean they were negligent?
It means there is a question the facility has to answer, and the regulation puts the burden in a place that surprises people.
Under 10 NYCRR § 415.12(c), a nursing home must ensure that a resident who enters without pressure sores does not develop them — unless the individual’s clinical condition demonstrates they were unavoidable despite every reasonable effort to prevent them. And a resident who already has them must receive the treatment and services necessary to promote healing, prevent infection, and prevent new sores forming.
Read the exception closely. It is not “unavoidable because she was frail.” It is unavoidable despite every reasonable effort — which means turning schedules, nutrition, skin assessments, pressure-relieving surfaces, and a chart that shows them actually happening. A sore that appeared while nobody documented any of that is not an unavoidable sore. It is an unexplained one.
What the wound looks like, and what its stage tells you about how long it was developing, is covered on our page on what a pressure ulcer or bed sore looks like. More on the claims themselves is on our bed sores page.
The home says the sore was unavoidable. Is that the end of it?
No. It is a defense, and it is one they have to prove with the record rather than assert in a meeting.
The chart usually decides it. Turning logs with identical entries in identical handwriting, risk assessments that were never updated, weights that were not taken, a wound that appears in a photograph before it appears in a note — those are the things that separate a genuinely unavoidable sore from one that was allowed to happen.
Falls
My father fell. Nursing homes say falls just happen. Do they?
Some do. But the regulation sets an expectation that the facility has to meet first.
Under 10 NYCRR § 415.12(h), the resident environment must remain as free of accident hazards as is possible, and each resident must receive adequate supervision and assistive devices to prevent accidents. That is a specific obligation, measured against what the home knew about that particular resident.
So the question is rarely “did he fall.” It is what the fall risk assessment said, whether the care plan matched it, whether the interventions in the care plan were actually in place that day, and whether this was the first fall or the third. A home that assessed someone as a high fall risk and then left him unassisted has not met the standard, whatever the incident report says.
The most common cause of injuries
What actually goes wrong most often?
Understaffing, and what follows from it. Most of the injuries we see are not deliberate cruelty — they are the predictable result of too few people trying to care for too many residents.
- Pressure ulcers, from residents not being repositioned
- Falls, from call bells unanswered and supervision that was planned but not delivered
- Dehydration and malnutrition, from residents who need help eating not getting it
- Infections, including untreated urinary tract infections that escalate
- Medication errors
- Unexplained bruising, fractures, or a sudden decline nobody can account for
The common thread is that each one leaves a documentary trail, or a conspicuous gap where the trail should be.
Practical questions
Can I get my mother’s records? The home is stalling.
Yes. The resident, or the person authorized to act for them, is entitled to the records. A facility that is slow about it is not thereby excused, and delay is itself worth noting.
Ask in writing and keep a copy of the request. In the meantime, photograph anything visible — wounds, bruising, the condition of the room, the call bell placement — with the date on it. Photographs taken by a family member have decided more of these cases than people expect, because they are contemporaneous and they are not the facility’s.
Should I report it, or call a lawyer first?
Both, and they do not conflict. Complaints about a New York nursing home go to the Department of Health, and the Long Term Care Ombudsman Program can advocate for a resident independently of any legal claim.
Reporting does not waive anything, and a Department of Health finding can be useful later. What you should not do is wait to see how the complaint turns out before speaking to anyone — those investigations take time, and deadlines do not pause for them.
My mother has died. Is it too late?
No, and this is the question families are most reluctant to ask.
A claim does not disappear because the resident has died, and where the neglect contributed to the death there may be additional claims belonging to the estate. What does matter is timing: different claims carry different deadlines, and which ones apply depends on the facts and on who the facility is. A publicly operated facility has far shorter deadlines than a private one.
If someone has died and you are uneasy about the care, that is a reason to ask sooner rather than later.
What does it cost to have you look at it?
Nothing to ask. These cases are handled on a contingency basis, so there is no fee unless there is a recovery — and § 2801-d separately allows a court to award attorney’s fees against the facility.
If we don’t recover money for you, we don’t get paid.
Talk to a Staten Island nursing home attorney
Families usually call us because something does not add up — a wound nobody mentioned, a fall nobody explained, a decline that happened faster than it should have. You do not need to be certain before you ask.
Call (718) 701-2776. The consultation costs nothing, and you will speak with me.