Moody Court Sets Its Sights on Ptaszynski: Bringing New Jersey Nursing Home Act Claims Into Focus
Earlier this year, in Moody by & through Gatewood-Gabriel v. Voorhees Care & Rehab. Ctr., 2021 WL 608903, at *2 (N.J. Super. App. Div. Feb. 17, 2021), the New Jersey Appellate Division clarified how to prove a violation under the New Jersey Nursing Home Responsibilities and Residents’ Rights Act (NHA), N.J.S.A. 30:13-1 to -17.
This lawsuit was filed after Dorothy Moody, a diabetic resident of a nursing home owned and operated by the defendants, reportedly suffered a severe hyperglycemic event accompanied by ketoacidosis and hyperosmolar non-ketosis. The plaintiff, through her granddaughter, alleged negligence and violations of both the NHA and federal regulations dealing with nursing homes under the Omnibus Budget and Reconciliation Act (OBRA), 42 C.F.R. §§ 483.1-483.480. Id. The defendants denied liability.
Ultimately, a jury returned a verdict for the plaintiff, and the trial court awarded her counsel attorney’s fees. The defendants appealed, raising several claims. The only issues on appeal relevant to the NHA, however, dealt with the plaintiff’s expert’s testimony regarding the statute and accompanying jury instructions.
“Originally enacted in 1976, the NHA declared a bill of rights for nursing home residents and defined the responsibilities of nursing homes.” Ptaszynski v. Atl. Health Sys., Inc., 111 A.3d 111, 116 (N.J. Super. App. Div. 2015). Yet, it wasn’t until 2015, in Ptaszynski, that the Appellate Division differentiated between the “rights” and “responsibilities” sections of the NHA for the first time.
Under the NHA, N.J.S.A. 30:13-8(a) allows a nursing home resident to bring suit to enforce the “rights” enumerated in N.J.S.A. 30:13-5(a) to (n), but not the “responsibilities” listed at N.J.S.A. 30:13-3(a) to (j). Some of these “rights” include “a safe and decent living environment,” “care that recognizes the resident’s dignity,” and “a right to care that recognizes the individuality of the resident.” N.J.S.A. 30:13-5(j).
In Ptaszynski, the Appellate Division clarified certain aspects of the NHA. The court first clarified that experts may not testify about the meaning of words within statutes, such as the NHA. The Appellate Division found that the trial judge in Ptaszynski erred when he allowed the expert “to provide her opinion of the meaning of the word ‘dignity’ in N.J.S.A. 30:13-5(j).” Additionally, the court indicated that a judge must instruct a jury on NHA claims in such a way that ensures the jury does not award the plaintiff duplicative damages for both NHA and negligence claims. The trial judge in Ptaszynski had failed to instruct the jury that, “they could not award Plaintiff damages for both Defendant’s negligence and NHA violation based on the same evidence.” As Ptaszynski held, “[t]he common law prohibits a double recovery for the same injury.”
It was these two holdings in Ptaszynski that the Moody court addressed and further refined.
As for the expert testimony issue, the Moody defendants relied on Ptaszynski, arguing that it was improper for the trial judge to allow “[Plaintiff’s expert] to provide opinion testimony interpreting a pertinent section of the NHA.” “Defendants, specifically, argued that the judge should not have allowed Plaintiff’s expert to testify about ‘dignity,’ ‘safe and decent living environment,’ and ‘individuality,’“ all words found in N.J.S.A. 30:13-5(j). The defendants alleged that the plaintiff’s expert “usurped the responsibility of the judge to instruct the jury on the law by discussing the NHA.”
The Appellate Division disagreed, finding that the testimony of the plaintiff’s expert that discussed the NHA “did not contravene our holding in Ptaszynski” because the expert “never defined ‘dignity’ or any other words in the NHA.” Rather, the expert only testified that he believed that the defendant violated the plaintiff’s rights under the NHA to “a safe and decent living environment,” “to care that recognized her dignity” and her “right to care that recognized her individuality.” The Appellate Division held that this was unlike the expert in Ptaszynski, who provided specific definitions of words in the NHA—testimony which “could have misled jurors from applying the plain meaning of the NHA’s language as instructed by the trial judge.”
As for the jury instruction issue, the Appellate Division in Moody found that the judge “properly instructed the jury that they could not award Plaintiff damages for both Defendants’ negligence and violation of the NHA based on the same injuries.” Unlike Ptaszynski, “Defendants insisted that the judge add specific language to the jury charge which stated, ‘You, the jury, cannot award the plaintiff damages for the defendant’s violations of the Nursing Home Act and its negligence based upon the same injuries or harm to [plaintiff].’” Based on that instruction, the Appellate Division held that the “verdict sheet sufficiently separated the negligence claim from the NHA claim.” The Appellate Division emphasized that “the jury found Defendants were both negligent and violated the NHA, and made separate awards for each claim in different amounts.”
Although Moody is an unpublished decision, it includes useful instruction on how to prove a claim under the NHA. It may also make future challenges by defendants more difficult. First, the Moody decision now permits experts to opine as to whether there have been violations of rights under the NHA, as long as they do not define words within the statute. Previously, whether a plaintiff’s rights were violated under the NHA was a conclusion that was exclusively within the purview of the jury. But, after Moody, it appears that a statement by the plaintiff’s expert that the acts of the defendant caused a NHA violation appears permissible.
Second, Moody seems to give plaintiffs the ability to use the same “damages” evidence in support of violations under the NHA and claims for negligence—provided the judge explicitly instructs the jury not to duplicate damages. Before Moody, defense counsel could rely on Ptaszynski to successfully argue that a NHA claim required a separate injury from the one underlying a negligence claim. It was not a distinction that a plaintiff could cure with a simple jury instruction. But in the wake of Moody, there no longer appears to be any meaningful requirement that a violation under the NHA calls for a distinct injury underlying the negligence.
Plaintiffs’ attorneys may rely on the Moody decision because it appears to make it easier to prove a violation of the NHA, which, under N.J.S.A. 30:13-8(a), means an award of attorneys’ fees is available if the plaintiff prevails on their claim. Defense counsel should push back on the shortcomings of Moody to try and reestablish Ptaszynski as the leading case on the NHA.
*Evan is an associate in our Mount Laurel, New Jersey, office. He can be reached at 856.414.6005 or email@example.com.
Defense Digest, Vol. 27, No. 4, September 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact firstname.lastname@example.org.