Legal Question in Medical Malpractice in New York

Nursing Home Care

My 86 year old Father has been in a County nursing home about 2 years.August10th he was admitted to the hospital with a high fever in extreme pain.The Doctor thought it was his appendix but when they opened him found infection thru out his body, removed the appendix anyway and immediately put him on medication to try to combat the infection and didn't think he would survive the night.THe next morning after further examination found he had a rectal abcess (on cheek of his buttucks) which had turned into gangrene, thus, the cause of infection!

I am told it is very hard to sue a county nursing home and in order to do so I would have to get power of attorney and any money would be in my Father's name in a trust, but catch 22 is if this is true then in turn Medicaid would step in to be reimbursed for his 2years of care(90,000).

Why is it that I can't sue the nursing home for negligence myself? I've had several medical opinions and all state that if he had proper care (for an incontinent,wheel-chair bound person) it would be impossible for something like this to be over-looked and to be in the condition he was in.


Asked on 9/10/99, 12:58 am

1 Answer from Attorneys
David Austin Burke & Eisner, P.A.

Re: Nursing Home Care

Your question sounds like it is ... Why can't I sue myself? That answer to that question does not depend on how good the case is against the nursing home.

The claim belongs to your father. That is why he or his representative is the one who must bring the claim.

It is true that you MAY have to pay back much of the medicaid lien, but this varies from state to state and I can't tell you for sure what happens in New York.

As for suing the county...Sometimes that can be a real problem because some states don't allow you to sue the government, such as towns or counties. But there are often ways around this and many states also just plain allow it.

You should talk with an attorney who has some knowledge about nursing home cases and new york law. I am not admitted in New York, but if you want to talk further then please feel free to contact me.

Read more
Answered on 9/29/99, 8:56 am


Related Questions & Answers

More Medical Malpractice Law questions and answers in New York