Document Category:
State: Kentucky
Subject Matter: KY Residents Rights Statute - SOL
Document Title:
Comments:

 

I am pleased to attach the Opinion in this case released today by the Kentucky Supreme Court.  This case considered whether the 5-year or the 1-year statute of limitations applies to residents rights claims specifically brought under Kentucky’s Resident’s Rights Act, KRS 216.515.


 

In Overstreet, our Supreme Court affirmed that all claims for injury to the person, regardless of whether they are brought under common law principles or as a statutory violation under KRS 216.515, are governed by the one-year period of limitations in KRS 413.140.   For example, the Supreme Court held that claims under KRS 216.516(6) (“All residents shall be free from mental and physical abuse”) are ordinary personal injury claims subject to the one-year statute of limitation.  


 

The Court also held that these same KRS 216.516(6) claims that are traditional personal injury claims survive the death of the resident under the survival statute, KRS 411.140,  and may be brought by the personal representative of the resident’s estate.  


 

The Supreme Court then distinguished personal injury claims from claims brought under subsections of the residents rights statute, granting rights of action unknown at common law, and finding them to be governed instead by the five-year statute of limitations in KRS 413.120(2).  For example:


 

(9) If a resident is married, privacy shall be assured for the spouse’s visits and if they are both residents in the facility, they may share the same room unless they are in different levels of care or unless medically contraindicated and documented by a physician in the resident’s medical record.


 

(12) Residents may retain the use of their personal clothing unless it would infringe upon the rights of others.


 

(14) Residents shall be permitted to participate in activities of social, religious, and community groups at their discretion.


 

(18) Each resident shall be treated with consideration, respect, and full recognition of his dignity and individuality, including privacy in treatment and in care for his personal needs.


 

(20) Residents have the right to be suitably dressed at all times and given assistance when needed in maintaining body hygiene and good grooming.


 

(21) Residents shall have access to a telephone at a convenient location within the facility for making and receiving telephone calls.


 

(22) The resident’s responsible party or family member or his guardian shall be notified immediately of any accident, sudden illness, disease, unexplained absence, or anything unusual involving the resident.


 

However, because the statute unambiguously states that the claims must be brought by “the resident or his/her guardian,” these claims do not survive the resident’s death and cannot be maintained by the estate.   


 

This opinion means that we are now able to move for partial summary judgment as to resident rights claims in a great many active cases where the resident’s rights claims alleged do not survive the death (at least as to those not arising under subsection (6)).  This could potentially have a great impact on damages exposure where we see, for instance, in the recent $18M Madison County verdict a completely separate jury instruction and damages award for a resident rights violation, on top of the ordinary negligence damages instruction.


 

On a side-note, in footnote 14, the Court states:


 

“The statute [KRS 411.140, the “survival statute”] also provides that “For any other injury an action may be brought or revived by the personal representative, or against the personal representative, heir or devisee, in the same manner as causes of action founded on contract.” Overstreet makes no allegation that this section of KRS 411.140 is applicable or that he brought the lawsuit “in the same manner as causes of action founded on contract.” 


 

Some Plaintiffs may try to argue that this statement means that the facility admission agreements offer an “end-around” as to whether the residents’ rights claims survive the death of the resident.  However, longstanding Kentucky law provides that medical negligence claims cannot be based upon contract principles.  Additionally, Kentucky statutes also limit medical negligence claims to a one-year limitations period (KRS 413.140(1)(e): An action against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice), and traditional personal-injury claims are dealt with as discussed above.  Footnote 14 appears to be limited to traditional contract claims such as financial obligations, etc.  This is not to say that the Plaintiffs’ Bar will not pull out the stops and give it a run, but even if they succeed in convincing a court, a Kentucky plaintiff cannot recover consequential or punitive damages for a mere breach of contract.  


 

In this Opinion the Court chose not to address the issue of whether the various parent company defendants (non-facility operators) may be sued for resident rights violations.  The trial court dismissed all non-facility entities, and the Court of Appeals did not address the issue in its opinion.  The Supreme Court therefore declined to reach the issue because they affirmed the dismissal on other grounds.  


 

All in all, we find this to be a well-reasoned Opinion from the Court, logically and reasonably interpreting the Residents Rights Statute, KRS 216.515, to comport with both long-standing common law principles as well as existing statutory limitation periods.   


 

Please don’t hesitate to contact me with any questions.


 

Don

 

______________________________________________________________

 

 

I repeat the entire text of the resident rights statute below for your ease in reference.

 

216.515 Rights of residents — Duties of facilities — Actions.


 

Every resident in a long-term-care facility shall have at least the following rights:

 

(1) Before admission to a long-term-care facility, the resident and the responsible party or his responsible family member or his guardian shall be fully informed in writing, as evidenced by the resident’s written acknowledgment and that of the responsible party or his responsible family member or his guardian, of all services available at the long-term-care facility. Every long-term-care facility shall keep the original document of each written acknowledgment in the resident’s personal file.

 

(2) Before admission to a long-term-care facility, the resident and the responsible party or his responsible family member or his guardian shall be fully informed in writing, as evidenced by the resident’s written acknowledgment and that of the responsible party or his responsible family member or his guardian, of all resident’s responsibilities and rights as defined in this section and KRS 216.520 to 216.530. Every long-term-care facility shall keep the original document of each written acknowledgment in the resident’s personal file.

 

(3) The resident and the responsible party or his responsible family member or his guardian shall be fully informed in writing, as evidenced by the resident’s written acknowledgment and that of the responsible party or his responsible family member, or his guardian, prior to or at the time of admission and quarterly during the resident’s stay at the facility, of all service charges for which the resident or his responsible family member or his guardian is responsible for paying. The resident and the responsible party or his responsible family member or his guardian shall have the right to file complaints concerning charges which they deem unjustified to appropriate local and state consumer protection agencies. Every long-term-care facility shall keep the original document of each written acknowledgment in the resident’s personal file.

 

(4) The resident shall be transferred or discharged only for medical reasons, or his own welfare, or that of the other residents, or for nonpayment, except where prohibited by law or administrative regulation. Reasonable notice of such action shall be given to the resident and the responsible party or his responsible family member or his guardian.

 

(5) All residents shall be encouraged and assisted throughout their periods of stay in long-term care facilities to exercise their rights as a resident and a citizen, and to this end may voice grievances and recommend changes in policies and services to facility staff and to outside representatives of their choice, free from restraint, interference, coercion, discrimination, or reprisal.

 

(6) All residents shall be free from mental and physical abuse, and free from chemical and physical restraints except in emergencies or except as thoroughly justified in writing by a physician for a specified and limited period of time and documented in the resident’s medical record.

 

(7) All residents shall have confidential treatment of their medical and personal records. Each resident or his responsible family member or his guardian shall approve or refuse the release of such records to any individuals outside the facility, except as otherwise specified by statute or administrative regulation.

 

(8) Each resident may manage the use of his personal funds. If the facility accepts the responsibility for managing the resident’s personal funds as evidenced by the facility’s written acknowledgment, proper accounting and monitoring of such funds shall be made. This shall include each facility giving quarterly itemized statements to the resident and the responsible party or his responsible family member or his guardian which detail the status of the resident’s personal funds and any transactions in which such funds have been received or disbursed. The facility shall return to the resident his valuables, personal possessions, and any unused balance of moneys from his account at the time of his transfer or discharge from the facility. In case of death or for valid reasons when he is transferred or discharged the resident’s valuables, personal possessions, and funds that the facility is not liable for shall be promptly returned to the resident’s responsible party or family member, or his guardian, or his executor.

 

(9) If a resident is married, privacy shall be assured for the spouse’s visits and if they are both residents in the facility, they may share the same room unless they are in different levels of care or unless medically contraindicated and documented by a physician in the resident’s medical record.

 

(10) Residents shall not be required to perform services for the facility that are not included for therapeutic purposes in their plan of care.

 

(11) Residents may associate and communicate privately with persons of their choice and send and receive personal mail unopened.

 

(12) Residents may retain the use of their personal clothing unless it would infringe upon the rights of others.

 

(13) No responsible resident shall be detained against his will. Residents shall be permitted and encouraged to go outdoors and leave the premises as they wish unless a legitimate reason can be shown and documented for refusing such activity.

 

(14) Residents shall be permitted to participate in activities of social, religious, and community groups at their discretion.

 

(15) Residents shall be assured of at least visual privacy in multibed rooms and in tub, shower, and toilet rooms.

 

(16) The resident and the responsible party or his responsible family member or his guardian shall be permitted the choice of a physician.

 

(17) If the resident is adjudicated mentally disabled in accordance with state law, the resident’s guardian shall act on the resident’s behalf in order that his rights be implemented.

 

(18) Each resident shall be treated with consideration, respect, and full recognition of his dignity and individuality, including privacy in treatment and in care for his personal needs.

 

(19) Every resident and the responsible party or his responsible family member or his guardian has the right to be fully informed of the resident’s medical condition unless medically contraindicated and documented by a physician in the resident’s medical record.

 

(20) Residents have the right to be suitably dressed at all times and given assistance when needed in maintaining body hygiene and good grooming.

 

(21) Residents shall have access to a telephone at a convenient location within the facility for making and receiving telephone calls.

 

(22) The resident’s responsible party or family member or his guardian shall be notified immediately of any accident, sudden illness, disease, unexplained absence, or anything unusual involving the resident.

 

(23) Residents have the right to have private meetings with the appropriate long-term care facility inspectors from the Cabinet for Health and Family Services.

 

(24) Each resident and the responsible party or his responsible family member or his guardian has the right to have access to all inspection reports on the facility.

 

(25) The above-stated rights shall apply in all cases unless medically contraindicated and documented by a physician in writing in the resident’s medical record.

 

(26) Any resident whose rights as specified in this section are deprived or infringed upon shall have a cause of action against any facility responsible for the violation. The action may be brought by the resident or his guardian. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in such action against the facility may be entitled to recover reasonable attorney’s fees, costs of the action, and damages, unless the court finds the plaintiff has acted in bad faith, with malicious purpose, or that there was a complete absence of justifiable issue of either law or fact. Prevailing defendants may be entitled to recover reasonable attorney’s fees. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the cabinet.

 

 


 


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Document Author: KY Supreme Court
Firm/Company: Quintairos Prieto Wood & Boyer
Document Date: Aug. 2015
Search Tags: KY SOL Residents Rrights
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