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New Jersey’s Appellate Division Alters the Landscape of Nursing Home Litigation

September 1, 2015

By Frank P. Leanza, Esq. and Ryan T. Gannon, Esq.*

Key Points:

  • No cause of action exists in nursing home negligence cases based on a defendant’s “responsibilities” under the state and federal nursing home statutes.
  • Based on the holding in Ptaszynski v. Atlantic Health Systems, defense counsel should aggressively litigate, during pretrial stages and discovery, any alleged violation of state and federal nursing home statutes.
  • Under Ptaszynski, a plaintiff may not obtain a double recovery, but must present evidence at trial that the injuries suffered are different when claiming both negligence and violations of the Nursing Home Act.

 

In New Jersey, the number of nursing home malpractice lawsuits filed has been on the rise. The “blue print” followed by many plaintiffs’ attorneys is to engage in extensive written discovery, make document production requests and pursue numerous depositions on the issue of whether the defendant complied with the New Jersey Nursing Home Act, N.J.S.A. 30:13-1- 30:13-17, and the federal Omnibus Budget Reconciliation Act (OBRA). The focus of discovery regarding compliance with the New Jersey Nursing Home Act and OBRA is an attempt to establish a violation of one of the hundreds of regulations in the state and federal statutes. By establishing a violation of the New Jersey Nursing Home Act or OBRA, a plaintiff may argue he or she is entitled to attorneys’ fees, costs of the lawsuit and treble (triple) damages.

In 1976, the legislature enacted the New Jersey Nursing Home Act to provide rights to residents and regulations to be followed by nursing homes in the state of New Jersey. The regulations governing nursing homes under the New Jersey and federal statutes are extensive. Under the New Jersey statute, residents have certain “rights” delineated by N.J.S.A. 30:13-5a-n. Also under the New Jersey statute, nursing homes have certain “responsibilities” pursuant to N.J.S.A. 30:13-3a-j, including N.J.S.A. 30:13-3(h), which requires a nursing home to ensure compliance with all applicable New Jersey and federal statutes, rules and regulations. The federal statutes contain hundreds of regulations that a nursing home could potentially be in violation of.

Complaints against nursing homes often contain various counts, including claims that the nursing home violated the New Jersey Nursing Home Act and OBRA regulations and, also, general nursing or medical negligence claims. Relying on N.J.S.A. 30:13-3(h) of the New Jersey statute, plaintiffs often allege that the nursing home defendants failed to ensure compliance with all applicable state and federal statutes. If they prove a violation of one of the hundreds of New Jersey and federal statutory regulations, plaintiffs would potentially be entitled to attorneys’ fees and costs.

Recently in Ptaszynski v. Atlantic Health Systems, 111 A.3d 111 (N.J.Super. App. Div. 2015), the Appellate Division changed the landscape of nursing home litigation. It reversed a jury verdict for the plaintiffs and remanding the case back to the trial court for a new trial based on several issues. At the trial level, the jury had found that the defendant was negligent and liable under the Nursing Home Act for violating one or more of the rules, regulations, or state or federal regulations applicable to the plaintiff’s care.

In reversing the jury’s award, the Appellate Division held that the provisions of the New Jersey Nursing Home Act did not provide a cause of action to the plaintiff to enforce the nursing home’s “responsibilities” as defined by the law, including the defendant’s obligation to comply with all applicable state and federal statutes, rules and regulations. Rather, the statute provides the Department of Health with the right to ensure that nursing homes are in compliance with their “responsibilities” under the statute. The New Jersey statute still permits plaintiffs to bring a cause of action for alleged violations of residents’ “rights” under the statute, including the often-cited violation of N.J.S.A. 30:13-5(j)—the right to “a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident.” However, the decision in Ptaszynski should narrow the causes of action available to plaintiffs in nursing home negligence cases.

The Ptaszynski court also reversed the jury verdict on the basis that the plaintiff’s evidence failed to distinguish injuries and harm caused by the defendant’s violations of the Nursing Home Act and those caused by its alleged negligent nursing care. The Appellate Division found that the jury was not instructed that they could not award the plaintiff damages for the defendant’s violations of the Nursing Home Act and damages for negligence based upon the same injuries or harm, and, therefore, there was potentially a double recovery awarded by the jury.

The Appellate Division’s holding in Ptaszynski should change the way nursing home litigation is handled, including the discovery to which plaintiffs are entitled. As a practice tip, defense counsel should move to dismiss any counts in the plaintiff’s complaint that allege the defendant(s) failed to comply with all applicable state and federal statutes, rules and regulations or that the defendant(s) violated any “responsibilities” under the New Jersey Nursing Home Act. Further, defense counsel should be objecting to discovery demands that are not related to the alleged violations of the resident’s “rights.” Discovery aimed at obtaining information or documentation related to the defendant facility’s alleged violations of state and federal statutes should be contested. The holding in Ptaszynski will refocus nursing home negligence cases on the actual injury or harm alleged to have occurred to the nursing home resident, instead of the facility’s conduct unrelated to the plaintiff’s care, including its compliance with hundreds of state and federal nursing home regulations.

*Frank, a shareholder, and Ryan, an associate, work in our Roseland, New Jersey office. Frank can be reached at 973.618.4174 or fpleanza@mdwcg.com. Ryan can be reached at 973.618.4115 or rtgannon@mdwcg.com.

Defense Digest, Vol. 21, No. 3, September 2015

Defense Digest 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. © 2015 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 tamontemuro@mdwcg.com.

Affiliated Attorney

Frank P. Leanza
Shareholder
(973) 618-4174
fpleanza@mdwcg.com
Ryan Thomas Gannon
Shareholder
(973) 618-4115
rtgannon@mdwcg.com

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