New Appellate Division Opinion On The Nursing Home Act – How Does It Affect Our Clients?
Martha C. Ptaszynski v. Atlantic Health Systems, Inc., A-0245-12T3, decided on March 20, 2015, is the first reported Appellate Division opinion on a civil action for violations under the Nursing Home Act (NHA), N.J.S.A. 30: 13-1 et. seq.. A lesson to be learned from this opinion is to be careful how you plead the causes of action in the complaint.
Most nursing home neglect and abuse cases are litigated as common law negligence claims. There is a fast growing trend to add a separate cause of action based on violations of the NHA. The reason is that the statute provides for attorneys’ fees and punitive damages. The problem is distinguishing the injuries/harm caused by common law negligence and the injuries/harm caused by a violation of the NHA. There can be only one recovery for each act of wrongdoing. Therefore, the damage/harm for the violation of the NHA must be different and distinct from the damage/harm caused by common law negligence claims.
In Martha C. Ptaszynski v. Atlantic Health Systems, Inc., Plaintiff’s attorney filed a four count complaint. The plaintiff had developed pressure sores, a fever and MRSA. Count one was a common law negligence claim. Count four was a wrongful death claim. Counts two and three alleged violations of the New Jersey’s statutes and regulations relating to the care of nursing home residents. Specifically, count two was asserted under N.J.S.A. 30: 13-4.2 and alleged a violation of N.J.S.A. 30: 13-3h. N.J.S.A. 13-3 sets forth the “responsibilities” of nursing homes; paragraph h requires that nursing homes ensure compliance with all applicable state and federal statutes, rules and regulations. The issue before the Appellate Division was whether there can be a private cause of action for a nursing home’s breach of its responsibilities identified in the statute. Plaintiff’s attorney relied on N.J.S.A. 13: 13-4.2 which provided that a person shall have a cause of action against a nursing home for any violation of the NHA. However, N.J.S.A. 30: 13-4.1 addresses how a nursing home is to handle security deposits such as holding same in trust, not commingling etc.. N.J.S.A. 13: 4.2 authorizes the Department of Health to maintain the action to enforce the provisions of the act, rules and regulations. The Appellate Division examined the legislative history and found that the legislature, through use of the phrase “this act” intended N.J.S.A. 30: 14-2 to be amendatory legislation to be applied to N.J.S.A. 30: 13-4.1 only and not the entire NHA. The Appellate Division dismissed count two with prejudice.
In the third count, plaintiff alleges a violation of the Nursing Home Bill of Rights under the NHA, N.J.S.A. 30:13-5. Plaintiff specifically alleges a violation to paragraph j – “the right to have a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident.” The claim is asserted under N.J.S.A. 30:13-8a which sets forth that any person or resident whose rights have been violated shall have a cause of action against any person committing the violation. The action can be brought to recover actual and punitive damages plus reasonable attorney’s fees and costs.
The Nursing Home Bill of Rights has fourteen paragraphs. Paragraph h is the only paragraph that would encompass a personal injury claim caused by negligent care. The other paragraphs preserve personal rights such as privacy, managing financial affairs, communications, food that meets dietary requirements, possession of personal property and right to retain a personal physician.
The jury awarded damages in the amount of $250,000 for the common law negligence and $250,000 on the claims asserted under the NHA. In addition to dismissing count two with prejudice, the Appellate Division reversed the jury award and remanded the case for further proceedings. The Appellate Division found that the trial judge did not instruct the jury that it could not award damages for negligence and violations of the NHA based on the same injuries or harm.