N.J. Model Civil Jury Charge 5.77

5.77 VIOLATIONS OF NURSING HOME STATUTES OR

REGULATIONS – NEGLIGENCE AND VIOLATIONS OF

NURSING HOME RESIDENTS’ RIGHTS CLAIMS (Approved

11/2022; Revised 11/2023)

A. Negligence Claims

NOTE TO JUDGE

In Ewing v. Burke, 316 N.J. Super. 287 (App. Div. 1998), the Appellate Division

held that the trial court committed plain error in failing to modify the model charges

to include reference to a relevant motor vehicle statute that was applicable to the

facts and circumstances of the particular case. The Appellate Division stated:

“Ordinarily, therefore, if there is evidence tending to establish that a vehicle was

operated in violation of a motor vehicle statute, the statutory duty should be charged

to the jury in order to assist the jury in a rriving at the appropriate verdict.” Id. at

294. The Appellate Division also held that violation of statute can constitute

evidence of deviation from the standard of care. DiGiovanni v. Pessel , 104 N.J.

Super. 550, 562-63 (App. Div. 1969), aff’d in part , reversed in part 55 N.J. 188

(1970) (holding that N.J.S.A. 30:4-3 sets “standard to be observed” for a physician

certifying to patient’s insanity for purposes of commitment); Rosenberg by

Rosenberg v. Cahill, 99 N.J. 318 (1985) (holding that Board of Medical Examiners’

rules established for chiropractic practice set the standard of care). The Appellate

Division also held that an administrative code provision can provide a minimum

standard of safety and has the force of law. Cassanello v. Luddy , 302 N.J. Super.

267, 272 (App. Div. 1997). Similarly, if a plaintiff in a nursing home malpractice

action alleges violations of statutes or regulations by a nursing home (licensed long

term care facility), the jury should be charged on how violation(s) of a statute or

regulation can be considered to be evidence of negligence.

In this case, aside from asserting that the Defendants violated the Plaintiff ’s

nursing home resident rights, the Plaintiff claims the Defendants were also negligent.

In support of the Plaintiff ’s claims of negligence, it is asserted that the D efendants

also violated various nursing home statutes/regulations. The Plaintiff alleges

Defendants violated a statute and regulations, including the New Jersey Nursing

Home Responsibilities and Rights of Residents Act, and state regulations, which set

up standards of conduct for nursing homes in our state. If you find that the

Defendants violated any such standards of conduct, any such violation or violations

is evidence to be considered by you in determining whether negligence, as I have

defined that term to you, has been established. You may find that such violation or

violations constituted negligence on the part of the Defendants, or you may find that

they did not constitute such negligence. Your finding on this issue may be based on

such violation alone, but in the event that there is other or additional evidence

bearing upon that issue, you may consider such violation or violations together with

all such evidence in arriving at your ultimate decision as to the D efendants’

negligence.

1. Evidence of Negligence

The Plaintiff alleges the Defendants violated state law under the New Jersey

Administrative Code, as follows:

1. N.J.A.C. § 8:39-27.1(a)

1. This regulation states, in part:

The facility shall provide and ensure that each resident receives all care

and services needed to enable the resident to attain and maintain the

highest practicable level of physical (including pain management),

1 The foregoing regulations serve as common examples often alleged to have been violated in

nursing home negligence cases. Trial judges should use their discretion to alter or edit these

regulations so that the charged regulations fit the facts of the cas e. Furthermore, the listed

regulations are not exhaustive, but illustrative.

emotional and social well - being, in accordance with individual

assessments and care plans.

2. N.J.A.C. § 8:39-27.1(e). This regulation states, in part:

The facility shall take preventive measures against the development of

pressure sores, including assessing the resident’ s skin daily and

minimizing friction and pressure against clothing and bed linens. When

present, pressure sores shall be identified, documented, and treated.

The statutes/regulations in question set up standards of conduct for nursing

homes. If you find that the Defendants have violated any of these laws, such conduct

is evidence of negligence on the Defendants’ part.

Cases:

Philips v. Scrimente, 66 N.J. Super. 157 (App. Div. 1961). The above may be

modified to cover violations of certain other statutes or ordinances which set up a

standard of conduct to be observed in given circumstances for the benefit of the

class to which plaintiff belongs. Evers v. Davis, 86 N.J.L. 196 (E. & A. 1914);

Moore’s Trucking Co. v. Gulf Tire & Supply Co., 18 N.J. Super. 467 (App. Div.

1952).

B. V iol

ations of Nursing Home Residents’ Rights Claims

NOTE TO JUDGE

The Appellate Division in Ptaszynski v. Atlantic Health , 440 N.J. Super. 24 (App.

Div. 2015), certif. den’d 227 N.J. 357 (2016), held that N.J.S.A. 30:13- 8a of the

New Jersey Nursing Home Responsibilities & Rights of Residents Act , N.J.S.A.

30:13-1 et seq., specifically permits a private right of action under the statute for a

resident whose rights as defined under the statute are violated. Ptaszynski, 24 N.J.

Super. at 34. The Court in Ptaszynski specifically stated that

[t]hus, under the NHA as initially enacted, a person could only bring

a claim for a violation of a nursing home resident’s “rights” as

defined by law.

Id. Resident ’s “rights” are defined within the statute itself at N.J.S.A. 30:13- 5 to

include the following:

Every resident of a nursing home shall:

a. Have the right to manage his own financial affairs unless he or his

guardian authorizes the administrator of the nursing home to

manage such resident’s financial affairs. Such authorization shall

be in writing and shall be attested by a witness that is unconnected

with the nursing home, i ts operations, its staff personnel and the

administrator thereof, in any manner whatsoever.

b. Have the right to wear his own clothing. If clothing is provided

to the resident by the nursing home, it shall be of a proper fit.

c. Have the right to retain and use his personal property in his

immediate living quarters, unless the nursing home can demonstrate

that it is unsafe or impractical to do so.

d. Have the right to receive and send unopened correspondence and,

upon request, to obtain assistance in the reading and writing of such

correspondence.

e. Have the right to unaccompanied access to a telephone at a

reasonable hour, including the right to a private phone at the

resident’s expense.

f. Have the right to privacy.

g. Have the right to retain the services of his own personal physician

at his own expense or under a health care plan. Every resident shall

have the right to obtain from his own physician or the physician

attached to the nursing home complete and current information

concerning his medical diagnosis, treatment and prognosis in terms

and language the resident can reasonably be expected to understand,

except when the physician deems it medically inadvisable to give

such information to the resident and records the reason for such

decision in the resident’s medical record. In such a case, the

physician shall inform the resident’s next -of-kin or guardian. The

resident shall be afforded the opportunity to participate in the

planning of his total care and medical treatment to the extent that his

condition permits. A resident shall have the right to refuse

treatment. A resident shall have the right to refuse to participate in

experimental research, but if he chooses to participate, his informed

written consent must be obtained. Every resident shall have the right

to confidentiality and privacy concerning his medical condition and

treatment, except that records concerning said medical condition

and treatment may be disclosed to another nursing home or health

care facility on transfer, or as required by law or third-party payment

contracts.

h. Have the right to unrestricted communication, including personal

visitation with any persons of his choice, at any reasonable hour.

i. Have the right to present grievances on behalf of himself or others

to the nursing home administrator, State governmental agencies or

other persons without threat of discharge or reprisal in any form or

manner whatsoever. The administrator shall provide all residents or

their guardians with the name, address, and telephone number of the

appropriate State governmental office where complaints may be

lodged. Such telephone number shall be posted in a conspicuous

place near every public telephone in the nursing home.

j. Have the right to a safe and decent living envir onment and

considerate and respectful care that recognizes the 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.

k. Have the right to refuse to perform services for the nursing home

that are not included for therapeutic purposes in his plan of care as

recorded in his medical record by his physician.

l. Have the right to reasonable opportunity for interaction with

members of the opposite sex. If married, the resident shall enjoy

reasonable privacy in visits by his spouse and, if both are residents

of the nursing home, they shall be afforded the opportunity, where

feasible, to share a room, unless medically inadvisable.

m. Not be deprived of any constitutional, civil or legal right solely

by reason of admission to a nursing home.

n. Have the right to receive, upon request, food that meets the

resident’s religious dietary requirements, provided that the request

is made prior to or upon admission to the nursing home, and if the

resident is not a Medicaid recipient, that the resident agrees to

assume any additional cost incurred by the nursing home in order to

meet those dietary requirements. If the resident is a Medicaid

recipient upon admission, or becomes eligible for Medicaid after

admission, the nursing home shall include the cost of the religious

dietary requirements in its Medicaid cost report for consideration

under applicable reimbursement processes. As used in this section,

“Medicaid” means the Medicaid program established pursuant to

P.L.1968, c.413 (C.30:4D-1 et seq.).

The New Jersey Nursing Home Responsibilities & Rights of Residents Act, N.J.S.A.

30:13-1 et seq., applies to any facility licensed as a long-term care facility, whether

the resident is in for long- term care or sub -acute rehabilitation. N.J.S.A. 30:13-2

defines a nursing home 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.”

In this case, aside from asserting that the Defendants were negligent, the

Plaintiff claims that the Defendants violated the rights of the Plaintiff, as a nursing

home resident, under the rights enumerated in the New Jersey Nursing Home

Responsibilities and Rights of Residents Act. Specifically, the Plaintiff asserts that

the Defendants violated Plaintiff’s rights as a nursing home resident as follows:

1. The Plaintiff asserts that the Defendants violated N.J.S.A. 30:13-5(j)2,

which states:

“[e]very 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.”

2. The Plaintiff asserts that the Defendants violated N.J.S.A. 30:13-5(m),

which states that a resident shall:

“[n]ot be deprived of any constitutional, civil or legal right solely by reason

of admission to a nursing home.”

2 The foregoing rights serve as common examples often alleged to have been violated in nursing

home cases. Trial judges should use their discretion to alter or edit these rights so that the charged

rights fit the facts of the case. Furthermore, the listed rights are not exhaustive, but illustrative.

If you find that the Defendants violated any of these rights, you have found a

violation of the New Jersey Nursing Home Responsibilities and Rights of Residents

Act, and a violation of the Plaintiff ’s nursing home residents’ rights. Thus, if you

conclude that Defendants violated Plaintiff’s nursing home residents’ rights, you

must find for Plaintiff on this issue. If you conclude that Defendants did not violate

Plaintiff’s nursing home residents’ rights, you must find for Defendants on this issue.

C. Damages for Both Nursing Home Residents’ Rights Violations and

Negligence Claims

NOTE TO JUDGE

In Ptaszynski, the Appellate Division found that there was a double recovery for

violations of the New Jersey Nursing Home Responsibilities & Rights of Residents

Act and negligence due to the trial court’s failure to instruct the jury that it could

not award plaintiff damages for defendants’ violations of the New Jersey Nursing

Home Responsibilities & Rights of Residents Act and defendants’ negligence based

upon the same injuries or harm to Mrs. Ptaszynski. Ptaszynski , 440 N.J. Super. at

40. If the evidence of both causes of action is the same, the jury has already been

instructed not to duplicate the damages and there is a determination as to whether

one or both causes of action are established, with the violations of rights cause of

action entitling the Plaintiff to an award of attorneys’ fees and costs pursuant to

N.J.S.A. 30: 13-8(a).

The Plaintiff has brought claims for damages under both violations of nursing

home residents’ rights 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 nursing home residents’ rights.

If you find that Plaintiff has sustained separate and independent injuries, losses,

and/or harms for the negligence and nursing home residents’ rights, 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. You

may rely upon the same evidence in rendering a verdict as to whether or not the

Plaintiff’s nursing home residents ’ rights were violated and whether or not the

Defendants were negligent.

JURY INTERROGATORIES

Please answer the following questions in deliberations, noting the vote on

the “Yes” or “No” line, as applicable. Please follow the instructions after

answering the questions.

1) Did the Defendant Nursing Home violate Plaintiff’s rights as a nursing home

resident?

VOTE: YES ________

NO ________

If you answer “Yes,” proceed to answer question #2. If you answer “No”

and Plaintiff is also alleging negligence, proceed to question #3. If Plaintiff

is not alleging negligence, your deliberations are complete.

2) What amount of money would fairly compensate for Plaintiff ’s damages

resulting from the violation(s) of Plaintiff’s nursing home residents’ rights?

You are not to duplicate damages awarded under other theories of recovery.

$ ________________

VOTE: YES ________

NO ________

If Plaintiff is also alleging negligence, proceed to question #3. If Plaintiff is

not alleging negligence, your deliberations are complete.

3) Was the Defendant Nursing Home, or its staff, negligent?

VOTE: YES ________

NO ________

If you answered “Yes,” proceed to question #4. If you answered “No,” your

deliberations are complete.

4) Was the negligence of the above Defendant a proximate cause of Plaintiff’s

damages?

VOTE: YES ________

NO ________

If you answered “Yes,” proceed to question 5. If you answered “No,” your

deliberations are complete.

5) What amount of money would fairly compensate for Plaintiff’s damages

resulting from Defendant’s negligence? You are not to duplicate damages

awarded under other theories of recovery.

$ ________________

VOTE: YES ________

NO ________

Please advise the jury attendant that you have reached a verdict.