NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1103-24
ESTATE OF RENEE SAHAR,
through JACK SAHAR,
Executor,
Plaintiff-Respondent,
v.
301 UNION STREET, LLC, d/b/a
CARE ONE AT WELLINGTON,1 APPROVED FOR PUBLICATION
August 24, 2026
APPELLATE DIVISION
Defendant-Appellant,
and
CARE ONE, LLC,
Defendant.
Argued March 24, 2026 – Decided August 24, 2026
Before Judges Rose, DeAlmeida and TorregrossaO'Connor.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-0338-18.
1
Care One is sometimes spelled in the record as CareOne. Consistent with the parties' designations, we use "Care One."
Anthony Cocca argued the cause for appellant (Cocca
& Cutinello, LLP, attorneys; Anthony Cocca and
Katelyn E. Cutinello, of counsel and on the briefs).
Jonathan F. Lauri argued the cause for respondent
(Stark & Stark PC, attorneys; Jonathan F. Lauri, Denise
Mariani and James T. Evans, of counsel and on the
brief).
The opinion of the court was delivered by
ROSE, J.A.D.
Eighty-three-year-old Renee Sahar suffered a broken hip after falling at
301 Union Street, LLC, d/b/a Care One at Wellington (defendant or Care One),
during the night of April 6, 2016. Renee2 was admitted to Care One on March
3, 2016, following her hospitalization for a stroke and continued care at a
rehabilitation center. At the time of her admission to Care One, Renee was
partially paralyzed and suffered difficulties with motor function and self-care.
By all accounts, Renee required assistance rising from bed, walking, using the
toilet, and dressing. Suffering from dementia, Renee also experienced periods
of confusion. Although the time frame for Renee's release was uncertain, her
family anticipated Renee would return home after rehabilitation, which included
physical, occupational, and speech therapy.
2
Because the parties share a surname, we use first names for clarity. No disrespect is intended.
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2
After her fall, Renee underwent successful hip surgery and returned to the
rehabilitation center. Eventually, she was discharged and lived with her son,
Jack. Renee did not return to Care One; she had resided at the facility for thirtyfive days.
In January 2018, Renee filed a complaint in the Law Division against
defendant and Care One, LLC, alleging nursing negligence and a violation of
the Nursing Home Responsibilities and Rights of Residents Act (NHA or Act),
N.J.S.A. 30:13-1 to -19.3 In its answer to the complaint, defendant
acknowledged Care One was licensed and operated as a "long-term care
facility."
Pertinent to this appeal, following the close of discovery, defendant
moved for partial summary judgment contending, as a matter of law, Care One
was not a nursing home as defined under the NHA and therefore could not be
held liable for violating the statute. Defendant further contended plaintiff
3
In her complaint, Renee also asserted corporate negligence against Care One, LLC, and demanded punitive damages against all defendants. Following her death from unrelated causes, in March 2018, the Estate of Renee Sahar, through Jack Sahar (plaintiff), filed an amended complaint asserting the same causes of action as alleged in the initial complaint. The corporate negligence claim was dismissed on defendant's motion for summary judgment and, as such, Care One, LLC is not a party to this appeal. The punitive damages claim was dismissed on defendant's motion for reconsideration of the initial denial of its summary judgment motion on that issue.
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"improperly recast [the] medical/nursing malpractice [claim] as a 'rights'
violation" under N.J.S.A. 30:13-5(j) of the NHA "using the same factual
allegations and same exact damages."
The motion judge issued a cogent oral decision, denying defendant's
application. In essence, the judge found Renee satisfied the definition of a
nursing home "resident" under the Act and defendant's recasting argument was
"based on a selective reading of plaintiff's allegations." At the close of all
evidence, the trial judge implicitly granted plaintiff's in limine motion for a
finding that Care One was a nursing home; the judge also denied defendant's
motion for a new trial on that basis.
Initially scheduled for May 10, 2022, trial was adjourned multiple times
at the request of defense counsel in view of his trial schedule. Ultimately, trial
commenced on September 3, 2024, and concluded on September 12, 2024.
Less than one month before trial began, on August 12, 2024, defendant
sent correspondence to plaintiff amending its answers to interrogatories,
including about fifty pages of documents, which were the subject of a November
8, 2019 protective order, and the testimony of Care One employees named
therein, among defendant's potential trial evidence. Defendant contended our
Supreme Court's decision in Keyworth v. CareOne at Madison Avenue, 258 N.J.
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359 (2024), issued one week earlier on August 5, 2024, interpreted the Patient
Safety Act, N.J.S.A. 26:2H-12.23 to -12.25, to permit the disclosure of
documents pertaining to incident investigations conducted in nursing homes and
assisted living facilities. Defendant thus contended the documents it
successfully moved to preclude from discovery now were available for use in
the litigation. Defendant did not, however, move to reopen discovery or for
reconsideration of the protective order.
During the ensuing conference, the presiding judge denied defendant's
application, finding the matter had been pending six years and, during that time,
defendant continuously maintained its position the documents must not be
disclosed to plaintiff, litigating the issue before the trial court, Appellate
Division, and Supreme Court. The judge concluded it would be "patently unfair"
for defendant to reference the long-excluded documents at trial.
The following day, during the de bene esse deposition of Renee's nursing
expert, Carol White, RN, PhD, defense counsel referenced one of the documents
and plaintiff's counsel preserved her objections to that document and two others
on hearsay grounds. The trial judge, who had not decided the pretrial motions,
granted plaintiff's motion in limine to redact those portions of Dr. White's
testimony discussing the documents and bar their use at trial.
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At trial, plaintiff presented the testimony of: Jack; Renee's daughter, Ilene
Handal; and Renee's orthopedic surgeon, Jonathan Scherl, MD. Plaintiff also
moved into evidence Dr. White's redacted deposition testimony. Defendant
called its: nursing expert, Marianna Resnick, RN; geriatric medicine expert,
Sharon Brangman, MD; and orthopedic expert, Richard Schenk, MD.
During the charge conference, defendant requested a Scafidi4 instruction
regarding Renee's preexisting conditions—osteoporosis, dementia, and stroke—
to ensure plaintiff recovered damages attributable only to Care One's alleged
negligence in failing to prevent Renee's fall and hip fracture, not the percentage
attributable to her increased risk of falling because of those conditions. The
judge issued the charge only regarding Renee's osteoporosis. At plaintiff's
request, over defendant's objection, the judge's charge was limited to the
negligence claim.
By a six-to-one vote, the jury found plaintiff failed to demonstrate Care
One deviated from the applicable standard of care in its treatment of Renee. The
4
Scafidi v. Seiler, 119 N.J. 93 (1990).
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jury unanimously found plaintiff proved Care One violated the NHA and the
violation caused $525,000 in damages. 5
In a written decision, the judge denied defendant's ensuing motions for
judgment notwithstanding the verdict, a new trial, or remittitur, and granted
plaintiff's application for counsel fees. Memorialized by a November 18, 2024
final judgment, plaintiff was awarded: $525,000 in compensatory damages;
$116,812.50 in prejudgment interest; $69,228.39 in reimbursement of a
stipulated Medicare lien; $67,044.79 in costs pursuant to Rule 4:42-8 and
N.J.S.A. 30:13-8; and $208,770 in attorney fees pursuant to Rule 4:42-9(a)(8)
and N.J.S.A. 30:13-8. Plaintiff's total recovery against defendant was
$986,855.68.
In its merits brief, defendant raises three arguments seeking reversal of
the jury verdict and a new trial. In its first point, defendant contends: the NHA
claim does not apply in this case as Renee was admitted to Care One for shortterm rehabilitation; plaintiff neither alleged nor presented evidence supporting
its NHA rights claim; and N.J.S.A. 30:13-5(j) is void for vagueness. In its
second point, defendant argues, by redacting Dr. White's deposition testimony,
5
The verdict sheet was not provided in the parties' appellate submissions. Prior to oral argument, at our request, defendant submitted the verdict sheet.
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the trial court improperly curtailed its questioning of Dr. White, creating "a false
narrative" Care One improperly left Renee unattended and unsupervised prior to
her fall. In its final point, defendant asserts presentation of plaintiff's NHA
claim to the jury and the evidentiary errors resulted in: inadequate jury charges
and interrogatories; a verdict against the weight of the evidence; and excessive
damages.6
During oral argument before us, defendant cited our decision in Emmons
v. Elmwood Hills Healthcare Center, LLC, 484 N.J. Super. 240 (App. Div.
2026), issued four days prior. Defendant argued Emmons supports its
contention the right to recover damages for nursing home negligence is distinct
from a violation of the NHA. After oral argument, defendant filed a
supplemental letter, pursuant to Rule 2:6-11(d), memorializing its argument.
Plaintiff filed a responding supplemental letter, countering Emmons supports its
position the same evidence adduced at trial may support a negligence claim and
NHA violation.
6
After the appellate briefs were filed, the trial judge submitted an amplification statement pursuant to Rule 2:5-1(d), addressing "the various issues raised by [Care One]."
A-1103-24
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Having considered defendant's contentions in view of the governing law
and the record provided on appeal, we are unpersuaded reversal and a new trial,
or remittitur of damages is warranted. We therefore affirm.
I. The NHA
A. Applicability of the NHA to Care One
Defendant does not dispute Care One was licensed as a long-term care
facility when Renee was admitted. Instead, defendant argues applicability of
the NHA does not hinge on licensure. Defendant maintains the NHA does not
apply to Care One because the facility was not operating as a "nursing home" as
defined under N.J.S.A. 30:13-2(c) in its care and treatment of Renee. Defendant
asserts Renee was admitted to Care One for short-term "rehabilitation" in the
facility's "subacute unit" rather than "extended care on a continuing basis" as
contemplated by the Act. Accordingly, defendant argues plaintiff's NHA claim
was erroneously submitted to the jury.
We review de novo a trial court's decision on matters of statutory
interpretation. See Grillo v. State, 469 N.J. Super. 267, 274 (App. Div. 2021).
"The object of statutory interpretation is to effectuate the intent of the
Legislature, as evidenced by the plain language of the statute, its legislative
history and underlying policy, and concepts of reasonableness." State v.
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Courtney, 243 N.J. 77, 85 (2020). We examine "the words of the statute and
ascribe[] to them their ordinary meaning," reading "disputed language 'in
context with related provisions so as to give sense to the legislation as a whole.'"
Ryan v. Renny, 203 N.J. 37, 54 (2010) (quoting DiProspero v. Penn, 183 N.J.
477, 492 (2005)).
"When the Legislature sets out to define a specific term, 'the courts are
bound by that definition.'" State v. S.B., 230 N.J. 62, 68 (2017) (quoting Febbi
v. Bd. of Rev., 35 N.J. 601, 606 (1961)). Stated another way, "[i]f the statute is
clear on its face, the analysis is complete, and it must be enforced according to
its terms." Pfannenstein v. Surrey, 475 N.J. Super. 83, 95 (App. Div. 2023)
(citing Hubbard v. Reed, 168 N.J. 387, 392 (2001)). On the other hand, if the
terms of the statute are ambiguous, a court may consider extrinsic interpretive
aids, such as legislative history. DiProspero, 183 N.J. at 492-93. Further, when
"a literal interpretation of a provision would lead to an absurd result or would
be inconsistent with the statute's overall purpose, 'that interpretation should be
rejected' and 'the spirit of the law should control.'" Pfannenstein, 475 N.J. Super.
at 95 (quoting Hubbard 168 N.J. at 392-93).
Recently, we reiterated the legislative history underpinning the 1976
enactment of the NHA. Citing the Senate Statement, we recognized "the
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Legislature sought to protect residents of nursing homes from 'inferior
treatment,'" Emmons, 484 N.J. Super. at 249 (quoting S. Insts., Health &
Welfare Comm. Statement to S. 944, at 1 (June 4, 1976)), including "the right
'to a safe and decent living environment,'" ibid. (quoting N.J.S.A. 30:13-5(j)).
See also Bermudez v. Kessler Inst. for Rehab., 439 N.J. Super. 45, 53-56 (App.
Div. 2015); Est. of Burns v. Care One at Stanwick, LLC, 468 N.J. Super. 306,
313 (App. Div. 2021). Indeed, the driving force of the enactment was the
Legislature's intent to address concerns about "the condition of the nursing
homes and the personal care facilities for the aged in this State." Bermudez, 439
N.J. Super. at 53 (quoting S.C.R. 15 (1974)).
Under the Act, at the time of plaintiff's admission to Care One, a
"[n]ursing home" was defined as
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. 30:13-2(c) (1997).]
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"Resident" was defined under the Act as "any individual receiving extended
medical or nursing treatment or care at a nursing home." N.J.S.A. 30:13-2(e)
(1997).
Amended in 2017, N.J.S.A. 30:13-2(c) was revised, but the substance of
the definition remained the same:
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 with acute or chronic illness or
injury, or a physical disability, or who are
convalescing, or who are in need of assistance in
bathing, dressing, or some other type of supervision,
and are in need of such treatment or care on a
continuing basis.
No revisions were made to the definition of "resident."
N.J.S.A. 30:13-5 sets forth the "bill of rights" outlined in the NHA's
legislative history. S. Insts., Health & Welfare Comm., Statement to S. 944, at
1. Comparing the enactment to its federal counterpart, the Legislature declared ,
"this bill makes similar standards of care applicable to all nursing homes and
nursing home residents in the State and, moreover, makes such standards an
expression of legislative policy and intent." Ibid. Relevant here, N.J.S.A.
30:13-5(j) provides every nursing home resident shall
[h]ave the right to a safe and decent living environment
and considerate and respectful care that recognizes the
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dignity and individuality of the resident, including the
right to expect and receive appropriate assessment,
management and treatment of pain as an integral
component of that person's care consistent with sound
nursing and medical practices.
Pursuant to N.J.S.A. 30:13-8(a), any person whose rights under the Act
are violated "shall have a cause of action against any person committing such
violation" and is entitled "to recover actual and punitive damages" as well as
"reasonable attorney's fees and costs of the action." Under certain circumstances
not relevant here, treble damages may be awarded. N.J.S.A. 30:13-8(b).
The regulations pertaining to the Standards for Licensure of Long-Term
Care Facilities, N.J.A.C. 8:39-1.1 to -47.5 (LTCF Licensure Standards), contain
similar definitions. N.J.A.C. 8:39-1.2 defines "[r]esident" as "a person who
resides in the facility and is in need of 24-hour continuous nursing supervision."
The same regulation states: "'Facility' means a facility or distinct part of a
facility licensed by the New Jersey Department of Health as a long-term care
facility." N.J.A.C. 8:39-1.2.
In the Health Care Facilities Planning Act (HCFPA), N.J.S.A. 26:2H-1 to
-26, the Legislature charged the Department with "central responsibility for the
development and administration of the State's policy with respect to" health care
institutions. N.J.S.A. 26:2H-1. On April 18, 2024, the Department issued
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guidance addressing "a request for an interpretation of the rules governing longterm care facilities, commonly known as nursing homes," particularly "whether
individuals receiving subacute care are considered 'residents'" pursuant to the
LTCF Licensure Standards. Citing the definitions of "resident" and "facility"
set forth in the regulation, the Department noted "N.J.A.C. 8:39-1.2 does not
limit the definition of 'resident' based on the type or duration of care an
individual receives in the long-term care facility."
Accordingly, "the Department interpret[ed] 'resident' as used in N.J.A.C.
8:39 to encompass every individual who resides in the long-term care facility,
including, but not limited to, individuals in the facility receiving subacute care
and long-term care." The Department concluded, "All residents are entitled to
the protections afforded under N.J.A.C. 8:39," with certain exceptions
inapplicable here. Those protections include the "[r]esident rights" set forth in
N.J.A.C. 8:39-4.1.7
7
Similar to the bill of rights set forth in N.J.S.A. 30:13-5, a nursing home resident's rights under the regulation provide each resident "shall be entitled to . . . live in safe, decent, and clean conditions in a nursing home that does not admit more residents than it can safely accommodate while providing adequate nursing care," N.J.A.C. 8:39-4.1(a)(11), and "be treated with courtesy, consideration, and respect for the resident's dignity and individuality," N.J.A.C. 8:39-4.1(a)(12).
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In the present matter, the motion judge noted defendant did not dispute
Care One was licensed by the Department as a long-term care facility. Citing
N.J.A.C. 8:39-1.1(a), the judge recognized "[a] long-term care facility is
commonly referred to as a nursing home." The judge found defendant had "not
produced any evidence to support its contention that it is a subacute care facility,
or anything other than a long-term care facility." The judge was satisfied Care
One met the definition of a nursing home under N.J.S.A. 30:13-2(c). Rejecting
defendant's "attempt[] to carve out the unit where [Renee] was a patient as an
area within a nursing home that does not fall within the definition of a nursing
home," the judge found defendant failed to support its claim with binding
authority.
Noting defendant failed to "provide any authority for its contention that
[she] was not an 'individual receiving extended medical or nursing treatment or
care,'" the motion judge further determined Renee was a nursing home "resident"
under N.J.S.A. 30:13-2(e). In doing so, the judge recognized Renee was
"admitted for an indefinite period of time for medical care following a stroke "
and had "already been a patient for over one month at Care One" when she left
for the hospital on April 7, 2016. The judge concluded "it appear[ed] that
[Renee] would have stayed at Care One for an even longer period of time had
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she not been injured" and there was "no indication that she was scheduled to be
discharged" at any specific point.
Addressing plaintiff's in limine motion prior to the charge conference, the
trial judge declined to depart from the motion judge's determination. In his oral
decision, the judge found "nothing occurred during trial" suggesting Renee was
not a resident as defined under the NHA. The judge further determined, as a
matter of law, Care One was a nursing home.
On de novo review, we discern no basis to disturb the judges' decisions.
Defendant does not dispute when Renee was treated at Care One, its license
provided the facility was authorized to operate as a "long-term care facility"
with "128 long-term care beds." Although defendant correctly asserts the
definition of "nursing home" in N.J.S.A. 30:13-2(c) does not reference the type
of license issued to a facility, a license may be considered when determining
whether the facility meets that definition. See Ptaszynski v. Atl. Health Sys.,
440 N.J. Super. 24, 43 (App. Div. 2015) (considering defendant's licenses as a
"comprehensive rehabilitation hospital" and a "hospital-based, long-term care
facility" when finding it was unclear whether the facility was a nursing home
under the NHA); Bermudez, 439 N.J. Super. at 51-52 (considering defendant's
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license as a "rehabilitation hospital" defined under N.J.A.C. 8:33-1.3 when
finding the facility was not a nursing home under the NHA).
The Department's April 18, 2024 guidance concerning the definition of
"resident" under N.J.A.C. 8:39-1.2 further supports our decision. As the
Department recognized, "long-term care facilities" are "commonly known as
nursing homes." See N.J.A.C. 8:39-1.1 (setting forth the scope and purpose of
the LTCF Licensing Standards). As we note above, the similarity of the
language in the Department's regulations concerning "resident rights" to the
Act's language in the "bill of rights" further evinces the Legislature's broad
concern for the safety and wellbeing of those receiving care in such facilities.
Moreover, N.J.A.C. 8:33H-1.1(g) of the HCFPA restricts the use of "longterm care beds" in long-term care facilities to "residents who require general
nursing home care." Entities approved for long-term care beds "shall not admit
residents who require a different licensing category of care, such as
comprehensive rehabilitation," except in specific emergency situations. Ibid.
Although the regulations state "[s]ome patients in nursing homes may, on
occasion, require rehabilitative care," they also provide these services "are
distinguished from comprehensive rehabilitation, which may only be offered by
a licensed rehabilitation hospital." N.J.A.C. 8:33H-1.1(e). Thus, the regulations
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also establish an entity, such as Care One, licensed as a long-term care facility,
may provide rehabilitation services to patients, such as Renee, and these
facilities are considered "nursing homes" by the Department.
We recognize the Department's regulatory definitions are not dispositive
on the issue of the Legislature's intent behind the statutory definitions contained
in the Act. Nonetheless, we note the Legislature granted the Department power
to "adopt reasonable rules and regulations . . . to carry out its functions and
duties under [the NHA] and to effectuate its purposes." N.J.S.A. 30:13-10. In
our view, this interpretation of the NHA's definitions is consonant with those
purposes.
In reaching our decision, we reject defendant's reprised argument that the
unit rendering Renee's care operated as a short-term rehabilitation unit, thus
removing it from the statutory definition of a nursing home set forth in N.J.S.A.
30:13-2(c). It is undisputed Care One was a facility providing "nursing
treatment or care for two or more nonrelated individuals." See ibid. Nor is it
disputed Renee suffered a stroke—an "acute" condition, which left her with
"chronic" symptoms including partial paralysis and other difficulties with motor
function—and was admitted to Care One to recover her health and strength
through the facility's rehabilitation services following that "illness or injury."
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For the entire duration of her stay at Care One, Renee required assistance with
basic activities of daily life, including bathing, using the toilet, dressing, and
walking.
The only true dispute defendant raises concerning the NHA's definition of
"nursing home" is whether Care One provided "extended" care generally under
N.J.S.A. 30:13-2(c), and whether Renee specifically was a "resident" receiving
"extended" care under N.J.S.A. 30:13-2(e). To support its argument, defendant
has consistently claimed Renee was admitted to Care One for rehabilitation with
the goal of eventually returning home, in contrast to patients who move into
"nursing home" facilities for the remainder of their lives. However, the NHA's
definition of "nursing home" encompasses entities providing care to patients
with acute conditions who are convalescing. The definition thus encompasses
patients similar to Renee, who was admitted to Care One for continued recovery,
anticipating she would be discharged upon sufficient improvement. Notably,
the statute does not dictate a facility's care must be provided on a "permanent"
basis for qualification as a nursing home.
Instead, the term chosen by the Legislature to describe the type of care
nursing homes provide is "extended." The Merriam-Webster Dictionary defines
"extended," in relevant part, as "drawn out in length especially of time," and
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cites as an example, "an extended visit."8 This definition does not imply the
term "extended care" applies only when a patient will never leave the facility
where such care is provided; the "ordinary meaning" of "extended," which
controls where the word is undefined, encompasses an extended stay. See S.B.,
230 N.J. at 68.
It is undisputed Renee resided at Care One for thirty-five days—a
protracted stay satisfying the plain definition of an "extended" care period.
Further, when Renee was admitted, there was no set deadline for her discharge.
Indeed, there is no evidence in the record indicating had Renee not fractured her
hip in April 2016, she would not have remained at Care One for an indefinite
time. Cf. Ptaszynski, 440 N.J. Super. at 43 (suggesting, without definitively
holding, the NHA might not apply to "a hospital-based facility like [the
defendant], where persons are admitted for fewer than thirty days").
Nor are we persuaded by defendant's reprised argument Care One is not a
nursing home for purposes of plaintiff's NHA claim because Renee was treated
in a "subacute unit." A "subacute unit" is a particular type of unit defined and
governed under the HCFPA. In particular, N.J.S.A. 26:2H-7.5 defines a
8
Extended, Merriam-Webster, https://www.merriamwebster.com/dictionary/extended (last visited Aug. 18, 2026).
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"subacute care unit" as "a unit located within a hospital which utilizes licensed
long-term care beds to provide subacute care for patients."9 Similarly, the LTCF
Licensure Standards define "subacute units" only in the context of "an acute care
general hospital." N.J.A.C. 8:39-47.2. Nothing in the record indicates Care One
is licensed as such.
Further, N.J.S.A. 26:2H-7.6 subjects hospitals proposing to establish
subacute care units to certain requirements. Pertinent here, the statute provides
the maximum length of a patient's stay in a subacute care unit "shall not exceed
eight days."10 N.J.S.A. 26:2H-7.6(a)(2). Renee was a patient at Care One for
more than one month. Thus, both Care One's license and the actual care it
provided Renee did not conform to the statutes governing subacute care units.
We therefore discern no basis to disturb the motion judge's decision on
summary judgment or the trial judge's decision submitting plaintiff's NHA claim
9
An earlier draft of N.J.S.A. 26:2H-7.5 discussed "subacute care units in health care facilities" and defined "health care facility" as "a hospital or a skilled nursing home." S. 368 (1996) (second reprint). The term "health care facility" was removed in the final enacted statute, further confirming the Legislature 's intent to restrict the establishment of subacute care units to acute care general hospitals and not nursing homes. Ibid.
10
An earlier draft of N.J.S.A. 26:2H-7.6 permitted an "average" length of stay not to exceed twenty days, the adoption of a maximum of eight days suggest the Legislature intended to closely limit the creation and utilization of subacute care units. S. 368 (1996) (second reprint).
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to the jury. We conclude, as did the motion and trial judges, there was no
evidence in the record to suggest Care One was licensed and actually operated
as anything other than a nursing home as defined under N.J.S.A. 30:13-2(c).
Renee received "extended" care at the facility, qualifying her as a "resident"
under N.J.S.A. 30:13-2(e) with all rights enumerated in N.J.S.A. 30:13-5.
B. Propriety of Plaintiff's NHA Claim & Jury Instructions
To further support its argument the motion and trial judges erroneously
failed to dismiss plaintiff's NHA claim, defendant argues plaintiff "did not allege
or present any evidence" demonstrating "defendant infringed any actionable
'right' of a nursing home resident listed in N.J.S.A. 30:13-5" regarding Renee's
care. Defendant maintains plaintiff's evidence "related solely to allegations of
nursing negligence allegedly resulting in a fall and hip fracture," and plaintiff
failed to "allege any separate harm or damages arising from the NHA rights
claim."
As part of its contentions in its third point, defendant also claims the trial
judge incorrectly instructed the jury it could consider "the same conduct"
relating to Renee's hip fracture "for purposes of both the nursing negligence and
NHA claims." Defendant asserts plaintiff's NHA claim essentially constituted
an improper "negligence per se claim." Defendant again argues plaintiff
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impermissibly recovered damages related to Renee's fall by "recast[ing] the
same allegations" in its negligence and NHA claims, thereby "circumvent[ing]
the requirements of establishing the duty of care, breach of that standard and
causation" using expert testimony. Defendant therefore argues the judge
improperly awarded plaintiff counsel fees and costs.
1. The Motion Record and Pertinent Trial Evidence
In his decision on summary judgment, the judge expressly found plaintiff's
"malpractice claim [wa]s based, in large part, on failure to provide an
appropriate wheelchair with restraints and/or appropriate nursing care," whereas
the NHA "rights violation claim [wa]s based on other conduct, including
humiliating [Renee] . . . by forcing her to urinate in her wheelchair, failing to
answer her call bell, and forcing her to live in an environment that was unsafe. "
At trial, plaintiff played the video-recorded testimony of Dr. White, who
testified, upon Renee's admission, Care One performed a fall risk assessment
that considered her mental status, gait, balance, vision, previous falls, and other
factors. Citing the evaluation, Dr. White testified Care One noted Renee had
"poor recall judgment," "poor safety awareness," and did not "understand her
own limits" regarding her ability to move around. Dr. White stated elderly
people with a degree of dementia may forget, or not understand, they "really
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shouldn't be getting up and walking" and may "unknowingly take unnecessary
risk[s]." Dr. White further testified Care One's records indicated Renee
exhibited "balance problem[s] while standing," "decreased muscle
coordination," and could only move from a seated to a standing position and
"stabilize" with staff intervention and assistance. In her ensuing trial testimony,
defendant's expert, Dr. Brangman, concurred with Dr. White's assessment of the
limitations of dementia patients.
Noting Care One ultimately assessed Renee as a "high risk for falls," Dr.
White opined she needed "more supervision" than other patients. Dr. White
testified Care One determined, as to Renee's "activities of daily living," two
people were necessary to assist with bathing, dressing, bed mobility, and
ambulation, and one person was required to assist with eating and toileting. Dr.
White noted Care One provided Renee a wheelchair with an alarm and non-skid
material under the chair's cushion, a walker, oxygen saturation socks, and side
rails on her bed.
Renee's medical records admitted at trial indicated she was, at times,
incontinent of bladder, bowel, or both. Renee's care plan indicated toileting was
to occur every two hours while she was awake. However, Jack and Ilene
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testified they visited their mother daily and toileting did not occur according to
the care plan.
Instead, Jack testified Renee said there were "many instances where she
would ring her bell because she needed to go to the toilet, and there would be
no response for a good fifteen to twenty minutes." Jack also testified he
witnessed the same issue during visits: he "would ring the bell" and "get no
responses," prompting him to "walk over . . . to the nurses' station" for
assistance. In response, Jack was told by Care One staff, "We'll get to you."
Ilene corroborated Jack's account, stating when she received no response, she
personally took her mother to the bathroom. Jack testified he escalated this
concern to an administrator, but the issue was not remedied. Dr. White testified
failure to take a patient to the toilet when requested is "one of the number one
reasons patients fall because they don't want to become incontinent." Patients
therefore attempt "to get up and go to the bathroom" without assistance.
Ilene testified Renee told her multiple times she had fallen and sometimes
had bruises Renee claimed were caused by the falls. According to Ilene, when
Renee's family informed Care One staff of these claims, staff responded Renee
was "confused" and denied anything happened. However, Renee's treatment
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records showed she had fallen on several occasions while at Care One, including
March 29, 2016, April 2, 2016, and April 4, 2016.
At trial, Jack testified about a text message exchange he had with Ilene
indicating Renee said, when no family member was present, "Willow," a Care
One aide, yelled at Renee.
On April 6, 2016, the day before Renee was admitted to the hospital with
a broken hip, Jack visited his mother with several other family members. When
he left Care One around 9:00 p.m., Jack brought Renee to her room. Jack
testified when he left, Renee did not seem confused. He reminded Renee to call
for help if she needed it, not to get up by herself, and to "just be careful."
Care One records referenced by Jack and Resnick at trial indicated, at
some point before 9:30 p.m., a nurse entered Renee's room and observed she
was "agitated" and experiencing increased confusion. In a report created later,
a nurse characterized Renee's mental state as "normal and confused." Because
the nurse was concerned Renee would overestimate her abilities and attempt to
stand and walk without assistance, Renee was placed by the nurse's station in
her wheelchair, as had been done on prior occasions.
According to Care One records, around 9:45 p.m., a nurse heard Renee's
chair sensor alarm sound and found her lying on the floor on her left side. Based
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on the account set forth in documents entered into evidence, it appeared the fall
itself was unwitnessed. Dr. White, Dr. Brangman, and Resnick confirmed,
according to the documents they received in preparation for their expert reports
and testimony, Renee was last observed sitting by the nursing station at 9:30
p.m., and there was no information available to establish how long the alarm
sounded before she was found. At trial, there was some dispute about exactly
where Renee was found—close to her wheelchair, or several feet away. A
treatment note in the record indicated, at the time of Renee's fall, the desk nurse
was standing outside Room 301, across from, not at, the nurses' station.
After Renee fell, staff telephoned a doctor, who advised how to check
Renee's extremities and temperature. The nurse determined Renee was "fine"
and returned her to bed, where staff would "continue to monitor." Renee was
administered acetaminophen in response to her complaint that her "head and
body hurt[]."
Ilene testified, the following day, around 8:00 a.m., she visited Renee at
Care One and found her sitting in a wheelchair near the elevators where she was
often placed before Ilene's visits. Ilene said her mother was "hunched over" and
looked "horrible," with a flushed, frowning, closed-eyed expression. Upset
because her mother "looked sick," Ilene "yelled" for assistance and asked her
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mother what had happened. Renee told Ilene she had fallen the night before and
was in pain, but did not state where or when the fall occurred. Ilene further
testified the responding nurse acknowledged Renee had fallen, but had not
witnessed the fall. Sometime later, Renee indicated the pain was in "her groin
area on the left side." Ilene testified another nurse said Renee "was walking . . .
behind the nurses' station near her room" when she fell.
Ilene testified she immediately told Care One staff Renee required
hospitalization. According to Ilene, however, the administration responded by
stating there would be a "meeting" when Jack arrived. Ilene testified, during the
meeting, Care One insisted the family discuss possible preventative measures
for any future falls.
Jack testified when he arrived, his mother "looked extremely in so much
pain," with a flushed face and closed eyes. According to the incident report
provided to Jack, Renee fell "in the hallway." Jack further testified family
members requested an ambulance between 8:30 and 9:00 a.m., but an ambulance
was not provided until "maybe, 1:30 to 2:00 in the afternoon." A Care One
record presented at trial confirmed a staff doctor "was made aware" of the
family's request but "d[id] not believe that evaluation [was] necessary." The
doctor advised the transfer could be provided "if [the] family [wa]s insisting."
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A treatment note added to Renee's chart at around noon on April 7,
indicated a staff member saw Renee "trying to bend down and . . . pick up
something" earlier that day. This staff member reinstructed Renee not to bend
down while seated in her wheelchair. In a treatment note added to Renee's chart
on April 8, a nurse indicated Renee "slept well throughout the night" on April
6, but "complained of moderate pain in the right groin area" at some point.
According to this note, Renee denied she was in pain at her 6:00 a.m. medication
time the next morning.
At the hospital, Dr. Scherl diagnosed Renee with a displaced left femoral
neck fracture and performed a left hip uncemented bipolar hemiarthroplasty to
repair the fracture in her hip by inserting prosthetic hardware into her joint. Dr.
Scherl opined the cause of Renee's hip fracture was the "[f]all onto her left side"
suffered on April 6. Dr. Scherl testified it was not "a reasonable story" that this
type of fracture could have occurred because Renee simply "bent over."
Although a pathologic fracture such as a hole, tumor, or cyst, could cause a hip
fracture, Dr. Scherl apparently did not note any of those conditions when
operating.
By contrast, defense expert, Dr. Schenk, concluded Renee's fall on April
6, 2016, did not cause her hip fracture. He opined, on April 7, Renee suffered
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an "insufficiency fracture" from her osteoporosis. Dr. Schenk testified had
Renee broken her hip on April 6, she would have been "screaming in pain" when
transferred from her wheelchair to her bed and would not have been able to sleep
through the night or eat as stated in her treatment note.
2. Jury Instructions
In his final charge to the jury, the trial judge's instructions on plaintiff's
NHA violation claim largely tracked the model jury charge. See Model Jury
Charges (Civil), 5.77, "Violations of Nursing Home Statutes or Regulations—
Negligence and Violations of Nursing Home Residents' Rights Claims" (rev.
Nov. 2023). Accordingly, the judge instructed:
In this case, aside from asserting that [Care One]
violated . . . plaintiff's nursing home resident rights,
. . . plaintiff claims that [Care One was] also negligent.
In support of . . . plaintiff's claims of negligence,
it has asserted that [Care One] also violated the nursing
home statute. [P]laintiff alleges [Care One] violated a
statute including the [NHA], which set up standards of
conduct for nursing homes in our state.
If you find that [Care One] violated any of the
standards of conduct, any such violation or violations
is evidence to be considered by you in determining
whether negligence, as I've defined that term to you,
has been established. You may find that such violation
or violations constituted negligence on the part of [Care
One] or you may find that they did not constitute such
negligence.
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Now in this case, aside from asserting that [Care
One] w[as] negligent . . . plaintiff[] claims that [Care
One] violated the rights of [Renee] as a nursing home
resident under the rights enumerated in the [NHA].
Specifically, . . . plaintiff asserts that [Care One]
has violated [Renee]'s rights as a nursing home resident
as follows. [P]laintiff asserts that [Care One] has
violated N.J.S.A. 30:13-5(j), which states: Every
resident of a nursing home shall have the right to a safe
and decent living environment, and considerate and
respectful care that recognizes the dignity and
individuality of the resident. . . .
If you find that [Care One] violated any of these
rights, you have found a violation of the [NHA] -- any
violation of . . . plaintiff's nursing home residents'
rights. . . .
Turning to plaintiff's burden of proving damages under its NHA claim, the
judge continued:
[P]laintiff has brought claims for damages under both
violations of [the NHA] and negligence. You are not
to duplicate damages, which means that you may not
compensate plaintiff twice for the same injuries in the
event you find in plaintiff's favor on both negligence
and [the NHA].
If you find that . . . plaintiff has sustained
separate and independent injuries, losses, and/or harms
for the negligence and [NHA violation], you may award
separate damage awards. However, if you find that
plaintiff did not sustain separate injuries or damages,
then you may compensate plaintiff once and only once.
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Later referencing a note on the verdict sheet, the trial judge reiterated: "you
may not compensate plaintiff twice for the same injuries in the event you find
in plaintiff's favor on one or both of the negligence claims and the nursing home
resident's rights claims."
3. Defendant's Contentions
Initially, defendant correctly argues the language contained in N.J.S.A.
30:13-5(j) does not support a negligence per se claim, as it does not plainly
prohibit negligent conduct, but rather requires "a safe and decent living
environment and considerate and respectful care." See Labega v. Joshi, 470 N.J.
Super. 472, 489-90 (App. Div. 2022) (holding the defendant's alleged violation
of hospital policies could not support a negligence per se claim because the
policies were not statutes and did not reference applicable standards of care in
the manner required to establish negligent conduct).
Here, however, plaintiff did not assert defendant's alleged violation of the
NHA constituted "negligence in itself" and Care One breached the relevant
standard of care. Nor did the trial judge instruct the jury to so find. Rather, the
judge explained, if the jury found "[Care One] violated any of the standards of
conduct" under the NHA, then the jury could consider "any such violation or
violations" as evidence "in determining whether negligence" was "established."
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See Badalamenti v. Simpkiss, 422 N.J. Super. 86, 102 (App. Div. 2011)
(recognizing a jury may sometimes consider a statutory violation "in
determining issues of negligence or contributory negligence," but reiterating
"the overriding principle that the statutory violation, to be evidential, must be
causally related to the happening of the [incident]" (quoting Mattero v.
Silverman, 71 N.J. Super. 1, 9 (App. Div. 1961))). Because plaintiff alleged
Care One violated the NHA and/or was negligent, but did not claim proof of an
NHA violation constituted proof of negligence, we reject defendant's contention
that plaintiff's NHA action constituted an impermissible "negligence per se"
claim.
Defendant also argues plaintiff inappropriately "recast" its negligence
claim as an NHA claim by proffering the same evidence to prove both counts
and, by extension, impermissibly invoking the Act to recover damages for
Renee's hip injury when the jury determined plaintiff failed to prove the injury
resulted from negligence. We are unpersuaded.
Generally, our Supreme Court has long recognized a plaintiff may pursue
multiple causes of action against the same defendant regarding the same
potential damages. See Howard v. Univ. of Med. & Dentistry, 172 N.J. 537,
545 (2002) (recognizing "a patient has several avenues of relief against a
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doctor," such as negligence, lack of informed consent, and battery, which may
be "based on different theoretical underpinnings," but nonetheless involve the
same alleged harm); see also Millison v. E. I. Du Pont de Nemours & Co., 101
N.J. 161, 186-88 (1985) (holding disabled workers could bring both statutory
workers' compensation claims and a common-law suit for intentional
wrongdoing against their employer).
As to plaintiff's causes of action in the present matter, defendant's reliance
on our decision in Ptaszynski is misplaced. Defendant asserts, in Ptaszynski,
we determined the plaintiff made "redundant allegations" when alleging both
negligence and a violation of N.J.S.A. 30:13-5(j), and therefore the plaintiff
failed to assert an actionable claim under the NHA. However, we made no such
determination.
In Ptaszynski, 440 N.J. Super. at 32, the jury separately awarded the
plaintiff $250,000 on her negligence claim and $250,000 for the NHA violation.
Concluding the jury "could not award [the] plaintiff damages for [the]
defendant's violations of the NHA and its negligence based upon the same
injuries or harm to [the plaintiff,]" we reversed the verdicts and damages awards
on both claims. Id. at 40. Relevant here, we explained, "If properly instructed,
the jury could have allocated the damages to the separate claims, based on the
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different theories of liability being asserted." Ibid. Because "the jury was not
provided with those instructions," we declined to "assume that the jury allocated
its damage awards based on the different theories of recovery" advanced at trial.
Ibid.
Conversely, in the present matter, the trial judge expressly instructed the
jury—consistent with the model jury charge—it was not to compensate plaintiff
twice for the same injuries. "Although model jury charges are 'not binding
authority,'" State v. Keogh, 481 N.J. Super. 67, 79-80 (App. Div. 2025) (quoting
State v. Bryant, 419 N.J. Super. 15, 28 (App. Div. 2011)), we are persuaded the
model jury charge, followed by the judge in this case, adequately addressed our
concerns in Ptaszynski.11 "We presume the jury followed the court's
instructions." State v. Smith, 212 N.J. 365, 409 (2012); see also Dutton v.
Rando, 458 N.J. Super. 213, 233 (App. Div. 2019). "Indeed, '[o]ne of the
foundations of our jury system is that the jury is presumed to follow the trial
court's instructions.'" Hrymoc v. Ethicon, Inc., 467 N.J. Super. 42, 79 (App.
Div. 2021), aff'd as modified, 254 N.J. 446 (2023) (quoting State v. Burns, 192
11
In the section on damages, the model jury charge contains a "NOTE TO JUDGE," expressly citing our decision in Ptaszynski, 440 N.J. Super. at 40. Model Jury Charges (Civil), 5.77(C), note.
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N.J. 312, 335 (2007)). The damages award here reflects the jury heeded the
judge's charge.
Further, defendant contends a nursing home resident may institute a
lawsuit against a facility alleging inadequate care only under a medical or
nursing negligence theory. More particularly, defendant apparently claims
plaintiff could not allege a violation of N.J.S.A. 30:13-5(j) with evidence
regarding Renee's fall and the jury wrongly awarded considerable monetary
damages associated with that incident without finding defendant breached its
standard of care under the rigorous negligence standard. At the same time,
defendant argues plaintiff could not support its claim with evidence of Care
One's other improper conduct, such as failures to answer Renee's call bell or
yelling at her, because that conduct was "not linked to any harm" which would
cause monetary damages.
Defendant's argument runs counter to the express terms of the NHA. To
hold otherwise, would deprive Renee, and other similarly situated nursing home
patients, redress for any violation of N.J.S.A. 30:13-5(j), rendering that
provision nugatory. Statutory language should not be construed in a way that
will make any part of the enactment "superfluous." State in the Int. of K.O., 217
N.J. 83, 91 (2014). Defendant's argument also is at odds with the Legislature's
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intent in passing the NHA. See Burns, 468 N.J. Super. at 313 (recognizing in
enacting the NHA, the Legislature found "the well-being of nursing home
residents' in this State required 'a delineation of nursing homes and a declaration
of a bill of rights for such residents.'" (quoting N.J.S.A. 30:13-1)).
Lastly, we are satisfied the jury's verdict on plaintiff's NHA claim was
supported by sufficient trial evidence. Although the jury found Care One's
nursing staff was not negligent in its care and treatment of Renee related to her
April 6, 2016 fall, there was ample evidence in the record that Care One did not
provide "a safe and decent living environment and considerate and respectful
care" under N.J.S.A. 30:13-5(j) on April 6 and other occasions.
Renee's April 6, 2016 fall was only one piece of the puzzle. As the trial
judge found when denying defendant's motion for judgment notwithstanding the
verdict, plaintiff presented evidence painting a full picture of inadequate care .
That evidence included Care One staff: (1) failed to timely inform Renee's
family of her falls and evaded their concerns when Renee reported falling; (2)
failed to conduct adequate checks that would have revealed Renee's hip fracture
sooner; (3) left Renee with a serious fracture overnight until Ilene discovered
her in intense pain the following morning; (4) denied Renee needed any further
evaluation; (5) delayed summoning an ambulance to transport Renee to the
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37
hospital; (6) yelled at Renee; (7) repeatedly failed to respond to Renee's and her
family's call bells; (8) failed to toilet Renee in accordance with her care plan;
and (9) left Renee in her wheelchair without supervision despite her previous
attempts to walk unaided.
Viewed in the entirety, the trial evidence supports the jury's verdict that
defendant violated N.J.S.A. 30:13-5(j) and its damages award. We therefore
conclude plaintiff's NHA violation claim was properly submitted to the jury and
the trial judge correctly instructed the jurors they could consider evidence
concerning Renee's April 6 fall when separately evaluating plaintiff's negligence
and NHA claims.
C. Constitutionality of N.J.S.A. 30:13-5(j)
As it did before the motion judge, defendant argues N.J.S.A. 30:13-5(j) is
void as unconstitutionally vague. The judge rejected defendant's contention
finding defendant failed to support its argument with controlling authority.
Citing, as one example, our decision in Ptaszynski, the judge found "numerous
courts have interpreted and applied [N.J.S.A. 30:13-5(j)] for decades."
Before us, defendant asserts the statute is facially vague because the
phrase, "right to a safe and decent living environment and considerate and
respectful care that recognizes the dignity and individuality of the resident ," is
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38
insufficiently specific or illustrative to permit care providers to "mold [their]
conduct in order to refrain from engaging in activity that the statute proscribes ."
Defendant suggests the "interpretation and application of the terms will vary
significantly from person to person," with some patients finding certain actions
by a provider "undignified" even though the actions may be medically necessary
and thus in compliance with "the standard of care." Defendant also argues the
statute is vague as applied to its own alleged conduct in this case.
As a threshold matter, the record contains no evidence defendant provided
notice to the Attorney General of its challenge to the validity of the statute. See
Rule 4:28-4(a) (mandating the party challenging the validity of a statute "give
notice of the pendency of the action to the Attorney General" when the State is
not a party to the action). Because defendant failed to duly notice the Attorney
General of its intention to challenge the constitutionality of N.J.S.A. 30:13-5(j),
we decline to consider its contentions on this appeal.
II. Impeachment of Dr. White
Defendant next argues the trial judge erroneously granted plaintiff's in
limine motion to redact portions of Dr. White's testimony referencing Care One
records and barring their use at trial. Defendant maintains the documents no
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longer were privileged following the Court's decision in Keyworth. We are
unpersuaded.
During direct examination at her deposition, Dr. White testified, in
pertinent part, Renee was not "able to move fast," noting she needed two people
to assist while standing and walking. Dr. White explained, "according to
documentation, [Renee] wasn't really ambulating much at all," and "wasn't
somebody that was going to be agile and jump right up."
Relevant here, Dr. White further testified Care One "failed to provide
close supervision at the nurses' station, and . . . recognize that [Renee] had a
fracture." Dr. White opined Renee was not "getting the appropriate level of
supervision because this wasn't a woman that was going to be able to move fast,"
and that when her chair alarm started to go off "[s]taff should have been able to
get to her in time" to prevent her from falling.
While cross-examining Dr. White about Renee's April 6 fall, defense
counsel referenced three Care One records: (1) a fall investigation review
written by Nurse Maxine Burns, dated April 6, 2016; (2) a physical therapy note
written by Mario P. Surio, Jr., dated April 8, 2016; and (3) an occupational
therapy note written by Hazel Doland, dated April 7, 2016. Burns's fall
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investigation review record was subject to the protective order and the motion
judge's ruling the prior day.
In the first document, Burns stated she "received [a] call from the desk
nurse that while [Renee] was sitting in her [wheelchair] in front of [the] nursing
station, she just suddenly stood up [and] attempted to walk then fell on [the]
floor." In the second document, Surio wrote: "As per [nursing] report, on
4/6/16, [the] desk nurse called the Nurse Supervisor [and] report[ed] that
[Renee] had a fall incident. [Renee] was sitting in her [wheelchair] in front of
the Nurses' Station, suddenly stood up and attempted to walk, then fell on the
floor." In the third document, Doland reiterated, "as per nursing report, on
4/6/16[,] the desk nurse called the nursing supervisor to report that while
[Renee] was sitting in her wheelchair in front of [the] nursing station, she just
suddenly stood up and attempted to walk, then fell on [the] floor."
Plaintiff's counsel objected on hearsay grounds. Defense counsel
countered Dr. White opened the door by opining Renee could not move quickly.
He argued plaintiff should not be permitted to "create an alternate reality that
says there's no 'suddenly'" when there were documents stating Renee "suddenly
stood up." In her testimony that followed, Dr. White confirmed she had not read
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the documents and thus did not consider them when authoring her expert reports
or while testifying.
Prior to trial, plaintiff's counsel identified ten excerpts from Dr. White's
deposition for redaction. Those excerpts included all references to, and
quotations from, the hearsay statements contained within the three Care One
records referenced by defense counsel during cross-examination of Dr. White.
Defense counsel countered the three Care One records were fodder for
impeachment purposes, particularly in light of the term, "suddenly," in the
records. Agreeing with plaintiff's counsel, the judge ordered redaction of the
records.
A trial court's evidentiary ruling is reviewed "with substantial deference,"
and must not be overturned "unless it constituted a clear abuse of discretion."
Hrymoc v. Ethicon, Inc., 254 N.J. 446, 463 (2023). Because trial judges enjoy
"broad discretion" in making evidence-related decisions, State v. Harris, 209
N.J. 431, 439 (2012) (quoting State v. Muhammad, 359 N.J. Super. 361, 388
(App. Div. 2003)), their evidentiary rulings "are subject to limited appellate
scrutiny," State v. Buda, 195 N.J. 278, 294 (2008). Thus, a reviewing court "will
reverse an evidentiary ruling only if it 'was so wide off the mark that a manifest
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42
denial of justice resulted.'" Griffin v. City of East Orange, 225 N.J. 400, 413
(2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
Seminal principles guide our review. "Out-of-court statements offered to
prove the truth of the matter asserted are hearsay." State v. White, 158 N.J. 230,
238 (1999) (citing N.J.R.E. 801). Under N.J.R.E. 802, hearsay is inadmissible
at trial except as otherwise expressly provided. "This general prohibition,
subject to various exceptions, reflects that hearsay is presumptively deemed to
be 'untrustworthy and unreliable.'" James v. Ruiz, 440 N.J. Super. 45, 59 (App.
Div. 2015) (quoting One Step Up v. Sam Logistic, 419 N.J. Super. 500, 507
(App. Div. 2011)). Accordingly, "unless a specific hearsay exception
recognizing the trustworthiness of some otherwise inadmissible out-of-court
statement applies," a hearsay statement may not be admitted in a judicial
proceeding. Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 316 (2006).
Exceptions to this general principle "have been made on the basis that 'the
circumstances under which the statements were made provide strong indicia of
reliability.'" State v. Nevius, 426 N.J. Super. 379, 393 (App. Div. 2012) (quoting
State v. Phelps, 96 N.J. 500, 508 (1984)).
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Defendant argues the three Care One records at issue were admissible
under N.J.R.E. 803(c)(6), providing an exception to the hearsay rule for a
business record, which is defined as:
[a] statement contained in a writing or other record of
acts, events, conditions, and, subject to Rule 808,
opinions or diagnoses, made at or near the time of
observation by a person with actual knowledge or from
information supplied by such a person, if the writing or
other record was made in the regular course of business
and it was the regular practice of that business to make
such writing or other record.
This exception does not apply if the sources or
the method, purpose or circumstances of preparation
indicate that it is not trustworthy.
Generally, N.J.S.A. 803(c)(6) "routinely permits the admission of medical
records." Konop v. Rosen, 425 N.J. Super. 391, 403 (App. Div. 2012). But this
general principle is not without limitations. For a record to qualify under the
business record exception, the proponent must demonstrate the writing was
"made in the regular course of business," "prepared within a short time of the
act, condition or event being described," and "the source of the information and
the method and circumstances of [its] preparation . . . justify allowing it into
evidence." State v. Sweet, 195 N.J. 357, 370 (2008) (quoting State v.
Matulewicz, 101 N.J. 27, 29 (1985)).
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Here, defendant did not present any evidence to the trial court establishing
a foundation for the three Care One records, either by testimony or sworn
statements. See Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 15
(App. Div. 1996). However, "[t]he authentication rule 'does not require absolute
certainty or conclusive proof.'" State v. Brown, 463 N.J. Super. 33, 51-52 (App.
Div. 2020) (quoting State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999)).
The reports were medical records created by Care One employees, within two
days of Renee's fall, concerning the circumstances of the incident. Arguably,
therefore, the records constituted business records containing non-expert
"routine" medical information and were admissible under N.J.R.E. 803(c)(6).
But that does not end our inquiry.
We turn to the notations contained in the three Care One records,
recognizing, as defendant argues, each notation "w[as] a factual statement, not
an opinion or complex diagnosis of a medical condition subject to exclusion
under N.J.R.E. 808."12 Konop, 425 N.J. Super. at 405. However, the notations
indicating Renee "suddenly" stood clearly were hearsay as the source of the
information was a non-testifying, unknown declarant. In each document, the
12
N.J.R.E. 808 generally excludes an expert opinion "included in an admissible hearsay statement" when the declarant does not testify.
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declarant stated he or she received information from someone else: Burns said
she "received [a] call from the desk nurse," who described Rene's fall; Surio
wrote "as per [a nursing] report," the desk nurse "called the Nurse Supervisor
and reported" about the fall; and Doland disclosed a "nursing report" said "the
desk nurse called the nursing supervisor" about the incident. Clearly, the
creators of the Care One records had no personal knowledge of the information
contained therein and the unidentified desk nurse's statements do not themselves
fall under any hearsay exception. See Konop, 425 N.J. Super. at 405-06.
Contrary to defendant's assertion, our decision in Konop does not compel
a different result. In Konop, 425 N.J. Super. at 397, the plaintiff's expert, Dr.
Meyer N. Solny, opined the defendant doctor deviated from accepted medical
standards by failing to stop a colonoscopy "when excessive patient movement
occurred." Dr. Solny based his opinion "exclusively upon a notation that
appeared in a consultation report prepared by" another physician, Dr. Victor S.
Flores, upon the plaintiff's admission to the hospital. Ibid. Dr. Flores, in turn,
"acknowledged that the consultation report was based upon what others told
him." Id. at 405-06. At trial, the plaintiff sought to "offer the notation 'to prove
the truth of the matter asserted,' i.e., that [she] was moving too much during the
colonoscopy." Id. at 406 (quoting N.J.R.E. 801(c)). We framed the issue as
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"the admissibility of a hearsay statement"—Dr. Flores's notation about the
plaintiff's movement—"contained within a document that was itself hearsay—
the consultation report." Id. at 402.
We recognized the consultation report itself was a business record
admissible under N.J.R.E. 803(c)(6) because it was created by Dr. Flores as part
of his routine duties at the hospital near the time of the plaintiff's admission to
the emergency room and its authenticity was not contested. Id. at 403-04.
However, we concluded the notation within the report was "clearly hearsay,"
and did not fall under other exceptions to the exclusionary rule the plaintiff
asserted, because Dr. Flores "was not present when the colonoscopy was
performed and had no direct knowledge whether [the] plaintiff was 'moving too
much' during the procedure." Id. at 406.
We also rejected the plaintiff's argument that the notation was admissible
under N.J.R.E. 703 because it formed the basis of Dr. Solny's opinion. Id. at
406-07. We held the plaintiff could not allow Dr. Solny to act as a vehicle for
the introduction of otherwise inadmissible hearsay as "substantive evidence"
that the plaintiff was "moving excessively during the colonoscopy" and, as such,
the defendant was negligent. Id. at 407. Ultimately, we remanded the matter to
the trial judge for a new trial, with the instruction that the disputed notation
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could only be admitted if it was established by a preponderance of the evidence
that the defendant doctor herself told Dr. Flores about the plaintiff's behavior,
which would render the notation admissible under N.J.R.E. 803(b)(1). 13 Id. at
421-22.
Unlike the notation in Konop, no potential exception to the hearsay rule
applies in the present matter. The hearsay statements contained in the three Care
One records were made by a nurse, who did not testify and was not identified in
the record, thus calling into question their reliability and trustworthiness. See
James, 440 N.J. Super. at 59. Further, Dr. White did not review the documents
prior to rendering her report or trial testimony, which may have otherwise
rendered the reports admissible under N.J.R.E. 703. See Agha v. Feiner, 198
N.J. 50, 62 (2009) (citing N.J.R.E. 703) (observing "the testifying expert is
generally permitted to detail for the trier of fact all of the materials, including
. . . hospital records . . . on which [the expert] relied in deriving his [or her]
opinion").
We also reject defendant's argument plaintiff "opened the door" to the
documents' use on cross-examination by eliciting testimony from Dr. White that
13
N.J.R.E. 803(b)(1) excludes from the hearsay rule a party-opponent's statement.
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Renee could not stand quickly. Defendant renews its contention that during Dr.
White's deposition, "plaintiff introduced a false narrative" suggesting Renee was
left unattended at the nurses' station and "got up and walked a distance away
from her wheelchair into the hallway, where she fell and was not discovered
until sometime later." Defendant also accuses plaintiff's counsel of
"reiterat[ing] the false narrative" during his opening statement "as the core of
plaintiff's theory of the case at trial." Defendant therefore claims it should have
been permitted to impeach Dr. White's testimony with the three Care One
records.
"The doctrine of opening the door allows a party to elicit otherwise
inadmissible evidence when the opposing party has made unfair prejudicial use
of related evidence." State v. James, 144 N.J. 538, 554 (1996). "Similar to the
'completeness' doctrine, the 'open door' doctrine provides an adverse party the
opportunity to place evidence into its proper context." Alves v. Rosenberg, 400
N.J. Super. 553, 564 (App. Div. 2008) (quoting James, 144 N.J. at 554).
Nonetheless, "it is generally improper to cross-examine an expert about
inadmissible hearsay documents upon which the expert has not relied in forming
his [or her] opinion." Villanueva v. Zimmer, 431 N.J. Super. 301, 320 (App.
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Div. 2013); Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117, 130 (App.
Div. 1998).
In the present matter, Dr. White stated multiple times she did not rely on
the three Care One records in reaching her conclusions, and when she learned
of their contents, disagreed Renee "could suddenly stand up." We therefore
conclude the trial judge properly ordered redaction of defense counsel's crossexamination on the contents of the three Care One records. To rule otherwise
would have permitted defense counsel to question Dr. White about documents,
which did not form her opinion.
Along the same lines, we reject defendant's assertion the records were
presented solely for impeachment purposes and not for their truth. The primary
objective in questioning Dr. White about the records was to convince the jury of
the veracity of their contents, that is, Renee could and did stand "suddenly," thus
Dr. White's testimony Renee could not do so was incorrect and not credible.
We also reject defendant's contention the records withheld from plaintiff
pursuant to the protective order no longer were privileged following the
Supreme Court's decision in Keyworth, 258 N.J. at 381-86, and as such, were
available for use at trial. Even if defendant could and should have provided the
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documents to plaintiff during discovery, the statements in those documents
constituted inadmissible hearsay under N.J.R.E. 802.
Nor are we persuaded by defendant's contention on reply that the records
were fair game for cross-examination because Jack and Ilene "were allowed to
give their own hearsay accounts of how their mother's fall occurred at trial."
Notably, defendant did not object to the siblings' statements on this issue at trial.
In summary, we conclude the trial judge did not abuse his discretion by
barring the introduction of the three Care One records at trial and ordering the
redaction of those portions of Dr. White's de bene esse deposition discussing the
documents. Although the documents could be considered business records
under N.J.R.E. 803(c)(6), the statements contained therein constituted hearsay
and references thereto were not permissible on cross-examination of Dr. White,
particularly because she did not rely on them when reaching her conclusions.
III.
In its final point, defendant briefly argues the trial judge erred by failing
to issue a Scafidi instruction regarding plaintiff's NHA claim and restricting the
Scafidi instruction to Renee's osteoporosis on plaintiff's negligence claim. 14 In
14
Because defendant prevailed on its negligence claim, we decline to consider its argument. See Redd v. Bowman, 223 N.J. 87, 104 (2015) ("An issue is 'moot
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the alternative, defendant contends the verdict was excessive. Defendant's terse
assertions require limited comment.
A. Scafidi Instruction
"In Scafidi, 119 N.J. at 93, the Court fully analyzed the relationship
between a pre-existing condition and proximate causation in increased-risk
medical malpractice cases." Reynolds v. Gonzalez, 172 N.J. 266, 282 (2002).
The Scafidi Court held: "Evidence demonstrating within a reasonable degree of
medical probability that negligent treatment increased the risk of harm posed by
a preexistent condition raises a jury question whether the increased risk was a
substantial factor in producing the ultimate result." 119 N.J. at 108 (citing Evers
v. Dollinger, 95 N.J. 399, 417 (1984)).
When presented with a Scafidi charge, a jury must undertake a two-prong
analysis. Initially, "the evidence must permit a jury to find that defendant was
negligent and that defendant's negligence increased plaintiff's risk of harm from
an established preexistent condition." Anderson v. Picciotti, 144 N.J. 195, 206
when [a judicial] decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" (quoting Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App. Div. 2011))). We note only defendant does not expound upon its contention that the judge erroneously limited the Scafidi instruction to Renee's osteoporosis on plaintiff's negligence claim.
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(1996). If the first prong is satisfied, it is established that "there are concurrent
causes of the harm to the plaintiff." Ibid. The jury must then apply the
"substantial factor" standard of causation—not the typical "but for" causation
test. Id. at 206-07.
To support its Scafidi argument, defendant cites only the Court's
eponymous case and the applicable model jury charge pertaining to medical
negligence actions. See Model Jury Charges (Civil), 5.50E, "Pre-Existing
Condition—Increased Risk/Loss of Chance—Proximate Cause," at 1 (rev. Mar.
2021). Defendant does not cite, and our independent research has not revealed,
any authority addressing the application of a Scafidi instruction to an NHA
violation claim. In his written decision denying defendant's motion for a new
trial, the judge similarly noted "Scafidi has not been applied outside the context
of physician malpractice or general negligence."
Stating the NHA "is a form of remedial social legislation designed to
protect vulnerable elderly residents in nursing homes," the trial judge
elaborated:
Reading Scafidi into the [NHA] [v]iolation [c]laim
would invert its intended protections, asking a jury to
speculate to what extent [Renee]'s age-related
osteoporosis "increased her risk" of a violation of her
resident rights. This reasoning does not align with her
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needs or the nursing home's duty to provide a safe
living environment and dignified care.
Nonetheless, the judge found:
[E]ven if Scafidi were theoretically applicable to
nursing home resident rights, [p]laintiff has satisfied a
higher burden of causation than that required under
Scafidi. Scafidi and its precursor, Evers . . . reduced
the burden of proof for proximate causation in cases
where quantifying the increased risk of harm was
difficult due to the inherent nature of the medical
condition.
The judge concluded plaintiff did not contend Care One aggravated Renee's
osteoporosis, but rather Care One "caused . . . whole new and separate injuries."
In view of the lack of binding precedent requiring issuance of a Scafidi
charge on plaintiff's NHA violation claim, we discern no error in the trial judge's
refusal to do so. Plaintiff's NHA claim was grounded in Care One's failure to
provide Renee "a safe and decent living environment and considerate and
respectful care that recognizes the dignity and individuality of the resident "
under N.J.S.A. 30:13-5(j). The evidence adduced at trial established Renee
suffered falls leading to and including the April 6, 2016 incident, and Care One
staff left her without proper supervision on multiple occasions. The evidence
supported a finding staff also failed to toilet Renee pursuant to her care plan, did
not respond timely to calls for assistance, and in the case of one aide, yelled at
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her. These allegations were separate and apart from the medical treatment Renee
received at Care One and, as such, a Scafidi causation and damages
apportionment instruction was not appropriate.
We therefore conclude the trial judge did not err in declining to issue a
Scafidi instruction on proximate cause as to plaintiff's NHA claim.
B. Remittitur
Lastly, defendant argues the verdict was excessive. Again, we are not
persuaded.
Well-settled principles guide our review. "[I]n the unusual case where a
damages award was grossly excessive or grossly inadequate," the court is
empowered "to grant a new trial or offer the parties a remittitur or an additur."
Orientale v. Jennings, 239 N.J. 569, 593 (2019). However, "unless both parties
consent to a remittitur or an additur, the court must grant a new trial." Ibid.
We will not reverse a trial court's decision to deny a motion for a new trial
"unless it clearly appears that there was a miscarriage of justice under the law. "
R. 2:10-1. That inquiry requires employing a standard of review substantially
similar to that used at the trial level, except the appellate court must afford "'due
deference' to the trial court's 'feel of the case,' with regard to the assessment of
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intangibles, such as witness credibility." Jastram v. Kruse, 197 N.J. 216, 230
(2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).
Because juries have broad latitude to determine damages, "the standard
for granting a new trial or remittitur is necessarily high." Johnson v. Scaccetti,
192 N.J. 256, 281 (2007). "A trial court should not order a new trial or remit a
jury's damages award unless it is so clearly disproportionate to the injury and its
sequela . . . that it may be said to shock the judicial conscience." Ibid. A court
"must be 'clearly and convincingly' persuaded that it would be manifestly unjust
to sustain the award." Ibid. (citing R. 4:49-1(a)).
In his well-reasoned written decision, the trial judge thoroughly addressed
the governing law on remittitur, recognizing his task was to view the evidence
adduced at trial "in the light most favorable to the plaintiff." Cuevas v.
Wentworth Grp., 226 N.J. 480, 501 (2016) (quoting Johnson, 192 N.J. at 281).
Quoting our Supreme Court's decision in Baxter v. Fairmont Food Co., 74 N.J.
588, 598 (1977), the judge further noted his analysis did not turn on whether he
"would have reached an opposite conclusion."
Summarizing the trial evidence, the judge was convinced the damages
award was not excessive. According to the judge:
Defendant minimizes Renee Sahar's injuries in extent,
duration, and its sequela. [Renee] suffered a fractured
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hip and a myriad of other injuries . . . , not to mention
the consequences of those injuries. The evidence also
showed the pain from the hip fracture persisted
throughout the remainder of [Renee]'s life. This pain
in her left hip did not exist prior to her fall on April 6,
at Care One. . . .
Even excluding the hip fracture, the jury had an
ample basis to draw the conclusion that [Renee]
suffered significantly at Care One warranting the jury
verdict given. The jury's "common judgment and
experience" allowed for "a valid judgment" about
whether plaintiff experienced mental suffering and
anguish.
Having considered the trial judge's decision in view of the guiding legal
principles and our deferential standard of review, we discern no basis to disturb
the damages award and order a new trial. Based on the evidence adduced at
trial, we conclude this was not "the unusual case where a damages award was
grossly excessive." See Orientale, 239 N.J. at 593.
***
To the extent not addressed, defendant's remaining contentions lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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