Martha C. Ptaszynski, Etc. v. Atlantic Health Systems, Inc., D/B/A Mt. Kemble Rehabilitation at Morristown Memorial Hospital

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0245-12T3
MARTHA C. PTASZYNSKI, APPROVED FOR PUBLICATION
individually, and as
executor of the ESTATE March 20, 2015
OF REGINA PTASZYNSKI, APPELLATE DIVISION
deceased,
Plaintiff-Respondent,
v.
ATLANTIC HEALTH SYSTEMS,
INC., d/b/a MT. KEMBLE
REHABILITATION AT MORRISTOWN
MEMORIAL HOSPITAL,
Defendant-Appellant.
______________________________________
Argued November 18, 2014 – Decided March 20, 2015
Before Judges Yannotti, Fasciale and
Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-7968-07.
Anthony Cocca argued the cause for appellant
(Bubb, Grogan & Cocca, L.L.P., attorneys;
Mr. Cocca and Michael S. Bubb, of counsel;
Katelyn E. Cutinello, on the brief).
Barry R. Sugarman argued the cause for
respondent (Sugarman Law, L.L.C., attorneys;
Mr. Sugarman, of counsel and on the brief).
The opinion of the court was delivered by
YANNOTTI, P.J.A.D.
Defendant appeals from a judgment entered by the Law
Division awarding plaintiff damages, prejudgment interest, and
attorney's fees and costs, on claims arising from the care
provided to Regina Ptaszynski ("Mrs. Ptaszynski") at Mt. Kemble
Rehabilitation at Morristown Memorial Hospital ("MKR"). We
reverse and remand the matter to the trial court for further
proceedings.
I.
This matter arises from the following facts. On June 13,
2006, following a fall at her home, Mrs. Ptaszynski was admitted
to St. Peter's Hospital ("St. Peter's") with a fractured left
hip and left elbow. She was eighty-six years old at the time.
Prior to her fall, Mrs. Ptaszynski had been suffering from heart
disease, high-blood pressure, an abnormal heart rhythm,
diabetes, hypothyroidism, and peripheral vascular disease, which
is a disease of the arterial blood vessels. Mrs. Ptaszynski had
triple-bypass surgery in 1998, and she suffered a stroke in 2000
that left her weakened on her left side.
While at St. Peter's, Mrs. Ptaszynski suffered a severe
heart attack which delayed the surgery required to repair her
fractured left hip. Mrs. Ptaszynski remained at St. Peter's
2 A-0245-12T3
until June 24, 2006, when she was transferred to MKR. Mrs.
Ptaszynski developed pressure sores and a fever at MKR, and on
July 19, 2006, she was transferred to Morristown Memorial
Hospital ("MMH"), where the doctors discovered that one of her
toes was infected with methicillin-resistant staphylococcus
aureus ("MRSA"), a bacteria that is resistant to most
antibiotics.
At MMH, the doctors treated Mrs. Ptaszynski's infection
with antibiotics, but on July 30, 2006, her infected toe was
amputated. Apparently, Mrs. Ptaszynski's condition worsened. On
August 2, 2006, she was placed on a ventilator; however, in
accordance with Mrs. Ptaszynski's advance directives, her family
members elected to discontinue life support. She died the next
day.
On September 18, 2007, plaintiff, who is Mrs. Ptaszynski's
daughter and the executrix of her estate, filed a four-count
complaint in the Law Division against defendant. In count one,
plaintiff alleged that defendant was negligent in the care that
it provided to Mrs. Ptaszynski. Defendant's negligence allegedly
included the failure to comply with New Jersey's statutes and
regulations relating to the care of nursing-home residents;
comply with federal regulations applicable to MKR; prevent the
development of pressure sores; and prevent and/or treat
3 A-0245-12T3
infections in a timely and appropriate manner. Plaintiff claimed
that, as a "direct and proximate result" of defendant's
negligence, Mrs. Ptaszynski suffered personal injuries, endured
physical pain and suffering and a loss of dignity, and
ultimately died.
In counts two and three, plaintiff asserted claims under
the Nursing Home Responsibilities and Residents' Rights Act (the
"NHA"), N.J.S.A. 30:13-1 to -17. The claim in count two was
asserted pursuant to N.J.S.A. 30:13-4.2 and alleged that MKR
violated N.J.S.A. 30:13-3h, which requires nursing homes to
comply with all applicable state and federal statutes, rules and
regulations. The claim in count three was asserted pursuant to
N.J.S.A. 30:13-8a based on defendant's alleged violations of
Mrs. Ptaszynski's right under N.J.S.A. 30:13-5j "to a safe and
decent living environment and considerate and respectful care
that recognizes the dignity and individuality of the
resident[.]"
In addition, in count four, plaintiff asserted a claim on
behalf of Mrs. Ptaszynski's survivors under the Wrongful Death
Act, N.J.S.A. 2A:31-1 to -6. Plaintiff alleged that, as a result
of defendant's wrongdoing, Mrs. Ptaszynski died prematurely and
her survivors had sustained economic losses.
Defendant filed an answer in which it denied liability and
4 A-0245-12T3
asserted generally that the complaint failed to state a claim
upon which relief could be granted. Defendant also asserted
various defenses and claimed, among other things, that the
provisions of New Jersey's Charitable Immunity Act (the "CIA"),
N.J.S.A. 2A:53A-7 and -8, either barred plaintiff's claims
entirely or limited her right to damages. In addition, defendant
asserted that the NHA was not applicable because MKR was not a
"nursing home."
On November 3, 2011, plaintiff filed a motion for partial
summary judgment, seeking a determination that MKR was subject
to and was required to comply with certain federal and state
statutes and regulations that apply to skilled nursing care
facilities and long-term skilled nursing care facilities.
Defendant opposed the motion, and argued that these statutes and
regulations did not apply to MKR because it is not a "nursing
home."
The trial court granted plaintiff's motion. The court
determined that MKR met the "very broad definition" of a
"nursing home" in N.J.S.A. 30:13-2c. The court also determined
that MKR was a "skilled nursing facility," and was subject to
state and federal regulations that applied to those facilities,
as well as the statutory and licensing standards for long-term
care facilities.
5 A-0245-12T3
Defendant thereafter filed a motion in limine in the trial
court seeking, among other relief, a determination that, if MKR
was considered to be a nursing home, defendant was entitled to
complete charitable immunity under N.J.S.A. 2A:53A-7 for non-
profit entities organized "exclusively for religious, charitable
or educational purposes[.]" Alternatively, defendant argued that
if MKR is considered to be a hospital, it is entitled to the
limited charitable immunity under N.J.S.A. 2A:53A-8, which
provides a $250,000 cap on damages caused by the negligence of
non-profit entities "organized exclusively for hospital
purposes[.]" The judge denied the motion without prejudice,
ruling that defendant could file a motion after the trial and
seek to mold the verdict on this basis.
The matter was tried before a jury, which found that
defendant was negligent and its negligence "was a proximate
cause of harm" to Mrs. Ptaszynski. The jury also found that
defendant was liable under the NHA because defendant violated
"one or more of the rules, regulations, or State or Federal
statutes applicable" to Mrs. Ptaszynski's care, and that such
violation "was a proximate cause of harm" to her.
The jury awarded plaintiff $250,000 on the negligence
claim, and $250,000 on the claims asserted under the NHA. In
addition, the jury awarded Mrs. Ptaszynski's survivors $50,000
6 A-0245-12T3
on the wrongful death claim. The judge granted defendant's
motion and dismissed plaintiff's claim for punitive damages.
Thereafter, defendant filed a motion to cap the damages
award at $250,000 pursuant to N.J.S.A. 2A:53A-8. The judge
denied the motion. The judge ruled that the limitation on
damages in N.J.S.A. 2A:53A-8 only applied to the damages awarded
on the negligence claim, and that award did not exceed the
$250,000 statutory cap. The court entered a final judgment for
plaintiff, which included an award of attorney's fees pursuant
to the NHA. This appeal followed.
II.
Defendant argues that the trial court erred by permitting
plaintiff to pursue a claim under N.J.S.A. 30:13-4.2 for a
violation of defendant's "responsibility" under N.J.S.A. 30:13-
3h to comply with applicable state and federal statutes and
regulations. Because this argument was not raised below, we
consider the argument under the plain error standard in Rule
2:10-2.
The NHA was enacted in 1976 to declare "a bill of rights"
for nursing home residents and define the "responsibilities" of
nursing homes. L. 1976, c. 120, § 1, codified at N.J.S.A. 30:13-
1. The "rights" of nursing home residents are set forth in
N.J.S.A. 30:13-5a to n, and include a resident's right to:
7 A-0245-12T3
manage his or her own financial affairs, unless a guardian
authorizes the nursing home to do so; privacy; retain the
services of his or her own physician; unrestricted communication
and personal visits at a reasonable hour; food that meets
religious dietary requirements; and "a safe and decent living
environment and considerate and respectful care that recognizes
the dignity and individuality of the resident[.]" Ibid.
Furthermore, the responsibilities of a nursing home are
defined in N.J.S.A. 30:13-3a to j. They include the
responsibility to: maintain complete records of a resident's
funds and personal property; provide for the spiritual needs and
wants of residents; admit only the number of residents for which
it could safely provide care; ensure applicants and residents
are not subject to discrimination based on age, race, religion,
sex or national origin; ensure that drugs are not employed as
punishment or for the convenience of staff; permit access by
legal services staff; ensure compliance with all applicable
state and federal statutes, rules and regulations; provide
residents with a written statement of services and charges; and
provide the resident or family with a copy of the admissions
contract. Ibid.
As initially enacted in 1976, the NHA provided in N.J.S.A.
30:13-8a that:
8 A-0245-12T3
[a]ny person or resident whose rights as
defined herein are violated shall have a
cause of action against any person
committing such violation. The Department of
Health and Senior Services[1] may maintain an
action in the name of the State to enforce
the provisions of this act and any rules or
regulations promulgated pursuant to this
act. The action may be brought in any court
of competent jurisdiction to enforce such
rights and to recover actual and punitive
damages for their violation. Any plaintiff
who prevails in any such action shall be
entitled to recover reasonable attorney's
fees and costs of the action.
(Emphasis added).]
Thus, under the NHA as initially enacted, a person could
only bring a claim for a violation of a nursing home resident's
"rights" as defined in the law. The provisions of N.J.S.A.
30:13-8a did not authorize a person to bring an action to
enforce the nursing home's "responsibilities" as defined in the
law. Under N.J.S.A. 30:13-8a, only the Department of Health (the
"DOH") could bring such an action.
The NHA was amended in 1991, adding two statutory sections,
which are codified in N.J.S.A. 30:13-4.1 and N.J.S.A. 30:13-4.2.
L. 1991, c. 262, §§ 1, 2. These statutes apply when a nursing
home requires a security deposit before admitting a person to
1
The Department is now known as the Department of Health. See
L. 2012, c. 17 (reorganizing and renaming the Department as the
DOH and transferring certain programs to a newly created
Division of Aging Services).
9 A-0245-12T3
the facility. Among other things, N.J.S.A. 30:13-4.1 establishes
requirements for the investment of security deposits in
interest-bearing or dividend-yielding accounts, notifying
residents about the investments, and the return of the deposits
with the interest or earnings, less allowed deductions for
administrative expenses, when the resident no longer resides in
the nursing home.
In addition, N.J.S.A. 30:13-4.2 provides that a person
"shall have a cause of action against the nursing home for any
violation of this act." (Emphasis added). Under N.J.S.A. 30:13-
4.2, the DOH is authorized to bring an action to enforce the
provisions of "this act and any rules and regulations
promulgated pursuant to this act." Ibid. (Emphasis added).
As we stated previously, in count two of her complaint,
plaintiff asserted a claim under N.J.S.A. 30:13-4.2, based on
defendant's alleged violation of its "responsibility" under
N.J.S.A. 30:13-3h to ensure "compliance with all applicable
State and federal statutes and rules and regulations." We must
determine whether N.J.S.A. 30:13-4.2 allows a private party such
as plaintiff to pursue a cause of action for this alleged
violation of the NHA.
Our "paramount goal when interpreting a statute" is to
ascertain the Legislature's intent. DiProspero v. Penn, 183 N.J.
10 A-0245-12T3
477, 492 (2005). In general, the "best indicator of that intent
is the language of the statute." Ibid. We must give the words
of a statute "their ordinary meaning and significance, and read
them in context with the related provisions so as to give sense
to the legislation as a whole[.]" Ibid. (internal citations
omitted). If the statutory language may lead to more than one
plausible interpretation, we will examine extrinsic evidence
such as legislative history and committee reports to determine
the Legislature's intent. Id. at 492-93.
The plain language of N.J.S.A. 30:13-4.2 and the context in
which the phrase "this act" is used in N.J.S.A. 30:13-4.1 and
N.J.S.A. 30:13-4.2 indicate that the Legislature intended the
phrase to mean the amendatory legislation enacted in 1991, not
the whole of the NHA. For example, N.J.S.A. 30:13-4.1g
authorizes the Commissioner of Banking (the "COB") to adopt
"rules and regulations with respect to the establishment of the
method of computing the interest due . . . pursuant to the
provisions of this act. . . ." (Emphasis added).
The authority granted to the COB pertains solely to the
computation of interest on security deposits under N.J.S.A.
30:13-4.1, not to other provisions of the NHA. The amendatory
legislation also states that "this act" shall take effect on the
first day of the sixth month after its enactment. L. 1991, c.
11 A-0245-12T3
262, § 3. The term "this act" as used in this section of the
legislation obviously refers to the statutory amendments, not
the NHA as a whole.
There is no indication that, in enacting the amendments to
the NHA, the Legislature intended to confer upon nursing home
residents the ability to bring actions to enforce any violation
of the NHA. The 1991 legislation imposed upon nursing homes new,
specific requirements pertaining to security deposits, and
allowed residents to bring actions to enforce those
requirements, not other responsibilities that nursing homes have
under the law.
Even if we viewed the phrase "this act" as ambiguous when
read in the context of the entire NHA, the conclusion that the
phrase "this act" in N.J.S.A. 30:13-4.2 only applies to the 1991
amendments is supported by the legislative history of the bill.
The Statement of the Senate Senior Citizen and Veterans Affairs
Committee to Senate, No. 1560, dated January 25, 1990, which was
later enacted as L. 1991, c. 262, provides in pertinent part
that "a person shall have a cause of action against a nursing
home for any violations of the provisions of the bill."
(Emphasis added). The Statement of the Assembly Senior Citizens
Committee to Senate, No. 1560, dated June 17, 1991, included an
identical statement. These legislative statements indicate that
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the amendatory legislation was intended to allow individuals to
assert a cause of action for a violation of the provisions of
the "bill" relating to security deposits, not for a violation of
any other provision of the NHA.
We therefore conclude that N.J.S.A. 30:13-4.2 does not
permit plaintiff to assert a cause of action for the alleged
failure by defendant to fulfill its responsibility under
N.J.S.A. 30:13-3h to comply with all applicable state and
federal statutes, rules and regulations. The trial court erred
by permitting plaintiff to pursue the claim in count two.
As noted previously, in counts two and three, plaintiff
asserted two claims under the NHA. The jury returned a single
verdict on both NHA claims. Because the claim in count two is
not permitted by the NHA, the verdict on the NHA claims and the
award of counsel fees pursuant to that law must be set aside.
The matter is remanded for entry of an order dismissing with
prejudice the claim asserted in count two, and for further
proceedings on count three, as discussed later in this opinion.
III.
Defendant also argues that the verdicts rendered for
plaintiff on the negligence and wrongful death claims should be
reversed on several grounds. We agree for the following reasons.
13 A-0245-12T3
A. Expert Testimony of Plaintiff's Nursing Expert
At trial, plaintiff asked the court to qualify Ilene
Warner-Maron ("Warner-Maron") as an expert in various nursing
care standards, the federal and state statutes and regulations
that apply to MKR, and the treatment of pressure sores. The
judge granted plaintiff's application.
The judge also told the jury he was "satisfied" Warner-
Maron was qualified as an expert "in the field of nursing
standards of care, the nursing law, clinical requirements for
treatment of pressure ulcers in a nursing facility," and that
Warner-Maron could testify and offer her opinions on these
subjects. In his final instructions to the jury, the judge
reiterated that Warner-Maron had been called as an expert in
"nursing law."
Generally, expert opinion testimony on matters of domestic
law is not admissible. State v. Grimes, 235 N.J. Super. 75, 80
(App. Div.), certif. denied, 118 N.J. 222 (1989). Rather, the
trial judge has the exclusive responsibility to instruct the
jury on the law to be applied to avoid the "danger . . . that
the jury may think that the 'expert' in the particular branch of
the law knows more than the judge[.]" Ibid. (quoting Marx & Co.
v. Diners' Club, Inc., 550 F.2d 505, 512 (2d Cir.), cert. denied
434 U.S. 861, 98 S. Ct. 188, 54 L. Ed. 2d 134 (1977)).
14 A-0245-12T3
Although it was permissible for the judge to allow Warner-
Maron to cite specific federal and state statutes and
regulations as support for her opinions on the applicable
standard of care, the judge erred by permitting her to testify
extensively as an expert in "nursing law."
The judge also erred because he permitted Warner-Maron to
provide her opinion of the meaning of the word "dignity" in
N.J.S.A. 30:13-5j. Defense counsel had objected to this
testimony on the ground that it improperly allowed Warner-Maron
to interpret a statute. The judge overruled the objection
because plaintiff's claim for damages included the loss by Mrs.
Ptaszynski of the enjoyment of life. The judge observed that
"dignity can play a role in loss of enjoyment of life." Warner-
Maron's testimony was specifically directed, however, to the
meaning of the statute, not plaintiff's damage claim.
The judge told the jury that it was not bound by the
testimony of an expert, but he merely read N.J.S.A. 30:13-5j to
the jurors and did not provide any guidance to the jury as to
its meaning. The jury was left with only Warner-Maron's
interpretation of the statute to guide its deliberations.
We are convinced that the judge's erroneous rulings
regarding Warner-Maron's testimony had the clear capacity to
affect the jury's decisions on the negligence and wrongful death
15 A-0245-12T3
claims, and the errors required reversal of those verdicts.
B. Mrs. Ptaszynski's Pre-Existing Conditions
At the charge conference, defense counsel asked the judge
to instruct the jury to consider Mrs. Ptaszynski's pre-existing
conditions in determining liability on the negligence claim. The
judge determined that the charge was not warranted because there
was no evidence indicating that Mrs. Ptaszynski had suffered
from pressure sores, an infection "or other things that were
claimed to be the cause of death" before she entered MKR.
To sustain a cause of action for negligence, a plaintiff
must prove that the defendant's negligent conduct was the
proximate cause of the asserted harm. Skripek v. Bergamo, 200
N.J. Super. 620, 633-34 (App. Div.), certif. denied, 102 N.J.
303 (1985). However, "'a defendant whose acts aggravate a
plaintiff's preexisting condition is liable only for the amount
of harm actually caused by the [defendant's] negligence.'"
Scafidi v. Seiler, 119 N.J. 93, 110 (1990) (quoting Ostrowski v.
Azzara, 111 N.J. 429, 439 (1988)).
In a negligence case with a single alleged cause of harm,
the jury is instructed on proximate cause in accordance with the
standard "but for" instruction. Anderson v. Picciotti, 144 N.J.
195, 202 (1996). The instruction allows a plaintiff to recover
only if the plaintiff can establish that the injury would not
16 A-0245-12T3
have occurred "but for" the defendant's negligence. Verdicchio
v. Ricca, 179 N.J. 1, 23 (2004). However, in cases where there
is sufficient evidence to show within a reasonable degree of
medical probability that the alleged negligent treatment may
have increased the risk of harm posed by an individual's pre-
existing injury, the jury must be instructed to consider whether
the increased risk was a substantial factor in producing the
ultimate result. Scafidi, supra, 119 N.J. at 108-14. See also
Model Jury Charge (Civil), 5.50E, Pre-Existing Condition –
Increased Risk/Loss of Chance — Proximate Cause (2014).
In this case, defendant presented testimony from an expert
in geriatrics and internal medicine. He testified that Mrs.
Ptaszynski had been taking blood-pressure medication. In
addition, a study at MMH showed that both arteries in her leg
were blocked. The expert testified that, with "no blood or
little blood going to the heels," eventually a person "would
develop a bedsore there." He further testified that, in his
opinion, given Mrs. Ptaszynski's other health problems, she "was
a little bit of a setup for bedsores."
Another defense expert testified that Mrs. Ptaszynski's
pressure sores "absolutely had nothing to do" with the MRSA
infection that caused her death. According to this witness,
tests showed that there was no MRSA bacteria present in any of
17 A-0245-12T3
Mrs. Ptaszynski's pressure sores. The expert opined that Mrs.
Ptaszynski's toe infection was caused by a hammertoe and ingrown
toenail, and by vascular compromise.
In view of the evidence of Mrs. Ptaszynski's pre-existing
health conditions, and the experts' testimony, a reasonable jury
could have found that any harm to Mrs. Ptaszynski, including her
death, was caused by her pre-existing conditions, not the
alleged negligent care attributed to defendant. We are therefore
convinced that the judge erred by failing to provide the jury
with a Scafidi instruction.
C. Double Recovery
In this case, plaintiff sought damages for Mrs.
Ptaszynski's personal injuries, mental anguish, loss of dignity
and death. Plaintiff's evidence did not, however, distinguish
between the injuries and harm caused by defendant's alleged
violations of the NHA and its alleged negligence.
"[I]t is fundamental that no matter under what theories
liability may be established, there cannot be any duplication of
damages." P. v. Portadin, 179 N.J. Super. 465, 472 (App. Div.
1981). The common law prohibits a double recovery for the same
injury. Buccheri v. Montgomery Ward & Co., 19 N.J. 594, 605
(1955). Furthermore, it would be inconsistent with well-
established principles to require a tortfeasor to pay twice for
18 A-0245-12T3
the same damages caused by a single wrong. Alfone v. Sarno, 87
N.J. 99, 115 (1981).
Here, the jury was not instructed that it could not award
plaintiff damages for defendant's violations of the NHA and its
negligence based upon the same injuries or harm to Mrs.
Ptaszynski. As noted, the jury awarded plaintiff $250,000 for
the NHA violations, and $250,000 on the negligence claim. Based
on the judge's instructions, those awards could have been based
on the same injuries or harm.
Plaintiff argues that the evidence allowed the jury to
infer that Mrs. Ptaszynski suffered different injuries and harm
from defendant's negligence and its violations of the NHA.
Plaintiff notes that the judge had instructed the jury that
plaintiff was only entitled to fair and reasonable compensation.
Plaintiff contends that the instructions prevented the
possibility of a double recovery for the same injuries or harm.
We do not agree. If properly instructed, the jury could
have allocated the damages to the separate claims, based on the
different theories of liability being asserted, but the jury was
not provided with those instructions. We cannot assume that the
jury allocated its damage awards based on the different theories
of recovery being advanced in this case.
Accordingly, the verdicts and damage awards on the
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negligence and wrongful death claims are reversed and the matter
remanded for a new trial on these claims.
IV.
We turn to several other issues that defendant has raised
on appeal.
A. Charitable Immunity
Defendant argues that the judge erred by refusing to
consider its pre-trial motion for immunity under the CIA.
Defendant further argues that the judge misinterpreted the CIA
when he denied its post-verdict motion to mold the verdict. In
support of its contention that it is entitled to the limited
immunity afforded to hospitals under N.J.S.A. 2A:53A-8,
defendant argues that it is not a "nursing home" under the NHA.
The CIA provides complete immunity from liability for
damages to any "nonprofit corporation, society or association
organized exclusively for religious, charitable or educational
purposes" for damages caused by its negligence when the injured
person "is a beneficiary, to whatever degree, of the works of
such nonprofit corporation, society or association[.]" N.J.S.A.
2A:53A-7(a). In addition, the CIA provides a $250,000 limitation
on the damages for negligence that may be awarded against a
nonprofit corporation, society or association that is "organized
exclusively for hospital purposes." N.J.S.A. 2A:53A-8.
20 A-0245-12T3
The CIA therefore immunizes certain nonprofit entities for
simple negligence, but not for intentional, reckless or grossly
negligent conduct. Hardwicke v. Am. Boychoir Sch., 188 N.J. 69,
97 (2006). The immunity provided by the CIA applies both to
statutory and common-law claims. Id. at 97 n.11.
Here, the judge initially refused to consider whether
defendant was entitled to charitable immunity because defendant
did not bring the motion raising this issue until the eve of
trial. Moreover, the record reflects that, in support of that
motion, defendant presented the judge with factual material that
had not been presented during discovery.
As noted, the judge allowed defendant to make a post-
verdict motion on the immunity issue, and then denied the
motion. The judge apparently found that the $250,000 limitation
on damages in N.J.S.A. 2A:53A-8 applied to defendant, but ruled
that the issue was moot because the $250,000 damage award on the
negligence claim did not exceed the statutory limit.
We are convinced that the judge erred by assuming that the
limitation on damages only applies to plaintiff's negligence
claims. When a plaintiff's cause of action is based on a
statute, and the defendant alleges that it is entitled to
immunity under the CIA, the claims must be reviewed to determine
whether the conduct that is statutorily prohibited falls within
21 A-0245-12T3
the scope of common law negligence. Hardwicke, supra, 188 N.J.
at 94-99. Therefore, on remand, the trial court must consider
whether plaintiff's NHA and wrongful death claims are
essentially negligence-based and also subject to the immunities
provided by the CIA.
Furthermore, if the trial court finds that that defendant
is not a "hospital" for purposes of immunity under the CIA, it
must determine whether defendant is entitled to complete
immunity under N.J.S.A. 2A:53A-7a. To qualify for immunity under
this statute, defendant must establish that it was organized
"exclusively for religious, charitable or educational purposes."
Ibid. (Emphasis added).
B. Whether MKR is a "nursing home" under the NHA
The term "nursing home" is defined in the NHA to mean
any institution, whether operated for profit
or not, which maintains and operates
facilities for extended medical and nursing
treatment or care for two or more nonrelated
individuals who are suffering from acute or
chronic illness or injury, or are crippled,
convalescent or infirm and are in need of
such treatment or care on a continuing
basis. Infirm is construed to mean that an
individual is in need of assistance in
bathing, dressing or some type of
supervision.
[N.J.S.A. 30:13-2c.]
In its answer, defendant asserted that it is not a "nursing
home" as defined in the NHA and therefore the NHA does not
22 A-0245-12T3
apply. Further, in response to plaintiff's motion for partial
summary judgment, and in its motion in limine on the charitable
immunity defense, defendant argued that it was a hospital, not a
nursing home.
We note, however, that defendant never filed a motion
seeking summary judgment on the NHA claims on this basis. On
appeal, defendant's arguments regarding the NHA are raised in
support of its contention that it is entitled to charitable
immunity under N.J.S.A. 2A:53A-8. Nevertheless, plaintiff's
ability to maintain her cause of action in count three turns
upon whether defendant's facility is a "nursing home" for
purposes of the NHA.
We are convinced that the record does not provide
sufficient information to determine whether MKR is a "nursing
home" for purposes of the NHA. Defendant contends that the NHA
was not intended to apply to a hospital-based facility like MKR,
where persons are admitted for fewer than thirty days for sub-
acute rehabilitation. In response, plaintiff contends that
defendant operates a hospital-based, long-term care facility
which meets the definition of a nursing home in N.J.S.A. 30:13-
2c.
The record indicates that the DOH issued two licenses to
defendant. One license authorized defendant to operate a
23 A-0245-12T3
comprehensive rehabilitation hospital consisting of thirty-eight
beds. The other license permitted defendant to operate a
hospital-based, long-term care facility with forty beds. The
licenses do not state, however, that MKR is licensed to operate
as a nursing home.
We also note that nothing in the record indicates that the
DOH ever issued a separate certificate of need ("CN") to
defendant authorizing the establishment of a nursing home.
N.J.S.A. 26:2H-7 provides that a CN is required for the
construction or expansion of "health care facilities," a term
defined in N.J.S.A. 26:2H-2a to include "nursing homes." See
also N.J.S.A. 26:2H-7.2 and -7.3 (exempting certain nursing
homes from the CN requirement).
In addition, it is not clear from the record whether MKR is
a facility that would be permitted to provide care on "a
continuing basis", which is an essential element of the
definition of a "nursing home" in the NHA. N.J.S.A. 30:13-2c.
As defendant notes, patients are treated temporarily at MKR,
with the expectation that they will be moved to another facility
for long-term or "continuing" care if needed.
Plaintiff insists that, because MKR is required to comply
with certain standards that apply to the care provided to
persons in nursing homes, MKR must be considered a "nursing
24 A-0245-12T3
home" under the NHA. Defendant maintains, however, that MKR is
a "hospital" even though those standards also may apply to the
care provided to persons treated at MKR. The trial court should
address these arguments on remand.
The parties should be afforded an opportunity to present
additional evidence in support of their respective arguments on
whether MKR is a "nursing home" for purposes of the NHA. This
court's recent decision in Bermudez v. Kessler Institute for
Rehabilitation, N.J. Super. (App. Div. 2015), may
provide the trial court and the parties with some guidance in
resolving this issue. There, the panel held that a comprehensive
rehabilitation hospital is not a "nursing home" for purposes of
the NHA. Id. at (slip op. at 4).
We note that defendant has also argued that: (1)
plaintiff's claims should have been dismissed because she failed
to identify deviations by individual practitioners; (2) the
trial judge erred by allowing Warner-Maron to testify as to the
cause of Mrs. Ptaszynski's death; (3) the federal regulations do
not establish a cause of action; (4) the federal and state
statutes and regulations relied upon by plaintiff do not
establish the applicable standard of care; (5) the judge erred
by precluding the admission of the results of the DOH's surveys
25 A-0245-12T3
of MKR; and (6) the counsel fee award should be set aside. In
view of our decision, we need not address these arguments.
Reversed and remanded for further proceedings in accordance
with this opinion. We do not retain jurisdiction.
26 A-0245-12T3