By Richard J. Talbot, Esq. and Abbott S. Brown, Esq.

Trial attorneys handling claims under the New Jersey Nursing Home Responsibilities and Rights of Residents Act need to follow the roadmap set out by the Appellate Division.

In Moody v. The Voorhees Care and Rehab. Ctr., the Appellate Division  addressed violations of nursing home rights claims involving negligent care and clarified and distinguished that case from the decision in Ptaszynski v. Atlantic Health.

The New Jersey Nursing Home Responsibilities and Rights of Residents Act (NHA), N.J.S.A. 30:13-1 to 17, was enacted  to define and protect the rights of the residents of New Jersey’s nursing homes. The NHA created a nursing home residents’ “bill of rights”, which included a multitude of important rights. Several of these rights are found at N.J.S.A. 30:13-5 (j). Three of the rights were at issue in  Moody:

1. “the right to a safe and decent living environment;”
2. the right to “considerate and respectful care that recognizes the dignity” of the resident; and
3. the right to “considerate and respectful care that recognizes the…individuality of the resident.” 

On appeal, the defendant argued the plaintiff’s expert should not have been permitted  to testify about violations of the NHA, specifically, the violations of nursing home residents’ rights in N.J.S.A. 30:13-5(j) that were alleged, pursuant to the cause of action recognized under N.J.S.A. 30:13-8(a). The trial judge prohibited the expert from providing an opinion on the meaning of words within the statute, in accordance with Ptaszynski, but permitted the expert to testify that the defendants violated Ms. Moody’s nursing home resident’s rights, which is what plaintiff’s counsel asserted. The appellate court explained:

During his testimony, Dr. Kirby, who the judge determined was qualified as an expert in internal medicine and geriatrics and was called as an expert as to defendants' negligence and violation of the statutes, explained that he was familiar with federal and state statutes and regulations, including the NHA, as he need[ed] to know what sort of the broad brush standard of care is [as] a physician's work and a nurse's work will fall under those regulations.” After testifying in detail as to why he believed that defendants' staff deviated from the applicable standard of care, which caused harm to plaintiff, Dr. Kirby addressed the NHA and stated that plaintiff's “rights as a nursing home resident were violated,” specifically “her rights to a safe and decent living environment,” ”her right to care that recognized her dignity,” and “her right to care that recognized her individuality.”

The Moody case recognizes there is no prohibition on making multiple claims, under multiple causes of action, for the same damages, just as in a civil rights matter involving common law tortious assault and battery and statutory civil rights claims, both for bodily injury.  The trial court in Moody addressed this issue by simply including the instruction, “You are not, however, simply to duplicate damages for the negligence claims.”  

This instruction, suggested by plaintiff’s counsel, was used to comply with the Appellate Division directives in Ptaszynski that since damages cannot  be duplicated, to avoid such a problem, the jury should be instructed in this way in every nursing home case. Also, the better practice is to have one non-economic damages question for the harm to the resident on the verdict sheet, after the questions regarding violations and proximate cause, as well as negligence and proximate cause, so that there is no need to distinguish damages between multiple causes of action, while the jury is instructed not to duplicate damages. A plaintiff has always been entitled to pursue multiple legally recognized causes of action for damages, regardless of whether or not they are the same.

We believe experts should opine on violations of rights but should  not be asked to define  the words within the statutes. The same evidence of damages can be utilized to prove both the statutory violations of rights and negligence causes of action, provided the jury is instructed not to duplicate damages, as was the case  in Moody. Finally, the federal regulations, state statutes and state regulations governing nursing homes are all relevant to the standards of care for nursing homes, as  Dr. Kirby was permitted to testify and as the jury was instructed with charges that incorporated statutory and regulatory language.

Richard J. Talbot,  Esq. is a Certified Civil Trial Attorney and Co-Chair of the New Jersey Association for Justice Nursing Home Committee.  He is in the firm of The Law Office of Andrew A. Ballerini, in Cherry Hill N.J. and was counsel for the plaintiff in Moody.  He can be reached  at 856-665-7140.

Abbott S. Brown Esq. is a Certified Civil Trial Attorney and author of New Jersey Medical Malpractice Law. He is a partner in Lomurro Law  in Freehold N.J. He can be reached at abrown@lomurrolaw.com or at 732-414-0300.