<b><i>Ptaszsynski v. Atlantic Health Sys</i></b>.

The Appellate Division identified further errors in the trial proceedings on the plaintiff's negligence claims, relating to the admission of the plaintiff's expert's testimony, the trial court's failure to give a Scafidi charge, and to the fact that additional assessment and fact-finding was necessary to determine whether the defendant AHS was entitled to charitable immunity and whether MKR is a “nursing home” within the meaning of the NHA, and therefore subject to its provisions. Further, there was concern that the trial court should have given, but did not give, a Scafidi charge. (A so-called ” Scafidi charge” derives from the New Jersey Supreme Court case of Scafidi v. Seiler, 119 N.J. 93 (1990). In it, the court fully analyzed the relationship between a pre-existing condition and proximate causation in increased-risk medical malpractice cases. The plaintiff in Scafidi alleged that the defendant's failure to properly treat and arrest her early labor was the proximate cause of the premature birth and death of her child. Scafidi, supra, 119 N.J. at 96. On the issue of proximate cause, a modified standard applies to cases “in which a defendant's negligence combines with a preexistent condition to cause harm ' as distinguished from cases in which the deviation alone is the cause of harm ' ” Scafidi, 119 N.J. at 108-09. The modified Scafidi instruction is consistent with New Jersey Model Civil Jury Charge 5.50E, which is entitled “Pre-Existing Condition ' Increased Risk/Loss of Chance ' Proximate Cause.”)

At the time the Scafidi opinion was issued, it was heralded as a model to fairly address these issues and ameliorate the potentially harsh results plaintiffs faced due to this otherwise difficult, confusing causation analysis. There was widespread belief that Scafidi had clarified the decreased burden of the “substantial factor” test. Further, Scafidi provided a two-pronged approach to the evaluation of both the causation and damages elements of these claims that was intended to simplify this complicated issue for jurors: 1) Did the negligent treatment increase the risk of harm posed by a pre-existing condition?; and 2) was the increased risk of harm a substantial factor in producing the ultimate result? For a jury to find that plaintiffs had met their burden of proof on causation, the substantial factor test required finding that the negligence was “sufficiently significant in relation to the eventual harm.”

Scafidi then went on to address the proper measure of damages once the plaintiff met this burden of proof on the substantial factor causation test. There was recognition that since a tortfeasor should be charged only with the value of the interest she destroyed, the defendant was entitled to have the total damages apportioned between the pre-existing condition and that actor's negligence. Significantly, the Scafidi damages analysis shifted the burden of proof to the defendant to prove that the damages were capable of apportionment, and how they should be apportioned to the underlying, pre-existing condition as contrasted to the lost chance caused by the negligence.

Reversible Error

Specifically, the Appellate Division held it was reversible error for the trial court to qualify plaintiff's nursing expert as a “nursing law” expert and by allowing her to provide her opinion of the meaning of the word “dignity” in N.J.S.A. 30:13-5(j). In addition, the trial court erred by failing to provide the jury with a Scafidi charge, which would allow the jury to consider Mrs. Ptaszsynski's pre-existing conditions in determining liability on the negligence claim. The trial judge had erroneously determined that the Scafidi charge was not warranted, because there was no evidence that Mrs. Ptaszsynski had suffered from pressure sores, an infection or other things that were claimed to be the cause of death before she entered MKR. However, based on Mrs. Ptaszynski's pre-existing conditions and the defense experts' testimony on how those conditions caused the pressure ulcers, infection and death, a reasonable jury could have determined that any harm to Mrs. Ptaszsynski was caused by her pre-existing conditions, and not the allegedly negligent care.

The Appellate Division also found that the trial court erred by failing to afford any Charitable Immunity ' whether the cap on damages, pursuant to N.J.S.A. 2A:53A-8; or complete immunity, under the N.J.S.A. 2A:53A-7(a) ' to MKR. Specifically, the Appellate Division explained that the trial judge erred by assuming that the Charitable Immunity statute's limitation on damages only applies to plaintiff's negligence claims and not statutory claims, such as the NHA. Therefore, on remand, the trial court would have to consider whether the plaintiff's NHA and wrongful death claims are essentially negligence-based and, as a result, also subject to the immunities provided by the Charitable Immunity Act.

In addition, although the trial court ruled that MKR was a “nursing home,” the Appellate Division found that the record did not provide sufficient information to determine whether MKR is a “nursing home” for purposes of the NHA. On remand, the trial court is to allow additional discovery on the issue and utilize the Appellate Court's opinion in Bermudez v. Kessler Institute for Rehabilitation, 439 N.J. Super 45 (App. Div. 2015), for guidance. (Bermudez held that a comprehensive rehabilitation hospital is not a “nursing home” for purposes of the NHA.) If MKR is considered a “hospital,” then, the cap on damages pursuant to N.J.S.A. 2A:53A-8 would be applicable. If, however, the trial court finds that MKR is not a “hospital” for purposes of immunity under the Charitable Immunity Act, it must determine whether MKR is entitled to complete immunity under N.J.S.A. 2A:53A(7).

Analysis

The Appellate Division's holdings in Ptaszynski illustrate the issues commonly presented in a case where NHA violations are alleged. Most often, the case is truly a negligence/medical malpractice case, adorned with NHA violations, which allows the expert witnesses to cite violations of statutory provisions. The NHA is also utilized to obtain additional damages for statutory violations, often duplicative of the negligence claims, and the award of attorneys' fees and costs. In that regard, common law negligence and NHA theories are often simultaneously pursued even when no specific violations under the NHA are alleged, such as, for example, the failure to: 1) allow the resident to manage his or her own financial affairs; 2) provide privacy; 3) permit the resident to retain the services of a physician of choice; 4) permit unrestricted communication and personal visits at reasonable hours; 5) provide food that meets religious dietary requirements, etc. Instead, all too often, the NHA claims advanced are amorphous allegations that merely recast regular negligence as an NHA violation.

Examples of typical NHA provisions recast as separate NHA violations in ordinary negligence cases that occur in a nursing home or rehabilitative center include N.J.S.A. 30:13-3(h), which encompasses the catchall failure to “ensure compliance with all applicable state and federal statutes, rules and regulations,” as well as N.J.S.A. 30:13-5(j)'s failure to provide the “right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident.” According to the Ptaszynski decision, an NHA cause of action for violation of N.J.S.A. 30:13-3(h) is foreclosed, but an NHA cause of action for violation of N.J.S.A. 30:13-5(j) may still be pursued, as long as the damages are not duplicative of the damages awarded for negligence.

The other issue that remains unresolved is the constitutionality of the NHA provision, N.J.S.A. 30:13-5(j), which requires the facility to recognize the “dignity” and “individuality” of residents. It was argued before the trial and appellate courts in Ptaszynski that N.J.S.A. 30:13-5(j) should be void for vagueness, but that issue has not been decided to date.

Since the Appellate Division's decision in Ptaszynski , the plaintiff has petitioned for certification to the New Jersey Supreme Court, arguing that the Appellate Division's ruling interpreting the NHA is inconsistent with Manahawkin v. O'Neill, 217 N.J. 99 (2014), and various Appellate Division opinions. AHS has opposed the plaintiff's applications, arguing that none of those cases address the issue presented in Ptaszynski; that is, whether a plaintiff may pursue an action on behalf of a nursing home resident under the NHA to enforce a nursing home's responsibilities to “ensure compliance with all applicable state and federal statutes, rules and regulations,” using the identical facts and injuries alleged in the medical malpractice claim. N.J.S.A. 30:13-3(h).

Moreover, to the extent that the Ptaszynski plaintiff seeks review of the Appellate Division's analysis of the NHA, it was argued that any opinion rendered by the Supreme Court at this time will be merely advisory in light of the Appellate Division's ruling that additional fact finding is necessary in order to determine whether MKR is even a “nursing home” subject to the statute. In the event that the high court, nonetheless, grants the plaintiff's petition for certification on the NHA issues, AHS has cross-petitioned for certification on the related issue of the constitutionality of the NHA provision, N.J.S.A. 30:13-5(j), which provides that nursing home residents “[h]ave the right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident”.

Whether the Supreme Court will grant certification remains to be seen. However, it is clear that the landscape of nursing home and medical malpractice claims has already been changed by the Ptaszynski opinion.

Katelyn E. Cutinello , who co-authored the briefs in the Ptaszynski appeal, is a partner at Bubb, Grogan & Cocca, LLP, where she concentrates her practice on complex litigation, including medical malpractice and general liability litigation. Anthony Cocca ' who tried the Ptaszynski case, co-authored the briefs and argued the appeal ' is a partner at the firm, where he also concentrates his practice on complex litigation, including medical malpractice and general liability litigation. Robert E. Spitzer , a member of this newsletter's Board of Editors, is an attorney with Post, Polak, Goodsell, MacNeill & Strauchler, P.A.

Editor's note: Last month, the authors began discussion of the recent New Jersey Appellate Division opinion in Ptaszynski v. Atlantic Health Sys. Inc., 440 N.J. Super. 24 (App. Div. 2015), an otherwise typical nursing home case made different when the plaintiffs tried to obtain a more favorable presentation to the jury by utilizing numerous provisions of New Jersey's Nursing Home Responsibilities and Rights of Residents Act (NHA), N.J.S.A. 30:13-1 to -17 to expand their claims and available damages. They now continue their discussion of the case and its impact on medical malpractice litigation in New Jersey.

Additional Problems with the Ptaszynski Case

The Appellate Division found that the Ptaszynski jury was not instructed in a way that ensured that the plaintiff was not awarded duplicative damages on the NHA and negligence claims. At trial, the plaintiff had presented only one harm that resulted from the defendant's alleged malpractice and NHA violations ' the development of pressure ulcers causing the plaintiff's death. However, the trial court had failed to instruct the jury that it could not award the plaintiff separate damages for the defendant's violations of the NHA and for negligence based on the same injuries or harm to Mrs. Ptaszynski.

The Appellate Division identified further errors in the trial proceedings on the plaintiff's negligence claims, relating to the admission of the plaintiff's expert's testimony, the trial court's failure to give a Scafidi charge, and to the fact that additional assessment and fact-finding was necessary to determine whether the defendant AHS was entitled to charitable immunity and whether MKR is a “nursing home” within the meaning of the NHA, and therefore subject to its provisions. Further, there was concern that the trial court should have given, but did not give, a Scafidi charge. (A so-called ” Scafidi charge” derives from the New Jersey Supreme Court case of Scafidi v. Seiler , 119 N.J. 93 (1990). In it, the court fully analyzed the relationship between a pre-existing condition and proximate causation in increased-risk medical malpractice cases. The plaintiff in Scafidi alleged that the defendant's failure to properly treat and arrest her early labor was the proximate cause of the premature birth and death of her child. Scafidi, supra, 119 N.J. at 96. On the issue of proximate cause, a modified standard applies to cases “in which a defendant's negligence combines with a preexistent condition to cause harm ' as distinguished from cases in which the deviation alone is the cause of harm ' ” Scafidi, 119 N.J. at 108-09. The modified Scafidi instruction is consistent with New Jersey Model Civil Jury Charge 5.50E, which is entitled “Pre-Existing Condition ' Increased Risk/Loss of Chance ' Proximate Cause.”)

At the time the Scafidi opinion was issued, it was heralded as a model to fairly address these issues and ameliorate the potentially harsh results plaintiffs faced due to this otherwise difficult, confusing causation analysis. There was widespread belief that Scafidi had clarified the decreased burden of the “substantial factor” test. Further, Scafidi provided a two-pronged approach to the evaluation of both the causation and damages elements of these claims that was intended to simplify this complicated issue for jurors: 1) Did the negligent treatment increase the risk of harm posed by a pre-existing condition?; and 2) was the increased risk of harm a substantial factor in producing the ultimate result? For a jury to find that plaintiffs had met their burden of proof on causation, the substantial factor test required finding that the negligence was “sufficiently significant in relation to the eventual harm.”

Scafidi then went on to address the proper measure of damages once the plaintiff met this burden of proof on the substantial factor causation test. There was recognition that since a tortfeasor should be charged only with the value of the interest she destroyed, the defendant was entitled to have the total damages apportioned between the pre-existing condition and that actor's negligence. Significantly, the Scafidi damages analysis shifted the burden of proof to the defendant to prove that the damages were capable of apportionment, and how they should be apportioned to the underlying, pre-existing condition as contrasted to the lost chance caused by the negligence.

Reversible Error

Specifically, the Appellate Division held it was reversible error for the trial court to qualify plaintiff's nursing expert as a “nursing law” expert and by allowing her to provide her opinion of the meaning of the word “dignity” in N.J.S.A. 30:13-5(j). In addition, the trial court erred by failing to provide the jury with a Scafidi charge, which would allow the jury to consider Mrs. Ptaszsynski's pre-existing conditions in determining liability on the negligence claim. The trial judge had erroneously determined that the Scafidi charge was not warranted, because there was no evidence that Mrs. Ptaszsynski had suffered from pressure sores, an infection or other things that were claimed to be the cause of death before she entered MKR. However, based on Mrs. Ptaszynski's pre-existing conditions and the defense experts' testimony on how those conditions caused the pressure ulcers, infection and death, a reasonable jury could have determined that any harm to Mrs. Ptaszsynski was caused by her pre-existing conditions, and not the allegedly negligent care.

The Appellate Division also found that the trial court erred by failing to afford any Charitable Immunity ' whether the cap on damages, pursuant to N.J.S.A. 2A:53A-8; or complete immunity, under the N.J.S.A. 2A:53A-7(a) ' to MKR. Specifically, the Appellate Division explained that the trial judge erred by assuming that the Charitable Immunity statute's limitation on damages only applies to plaintiff's negligence claims and not statutory claims, such as the NHA. Therefore, on remand, the trial court would have to consider whether the plaintiff's NHA and wrongful death claims are essentially negligence-based and, as a result, also subject to the immunities provided by the Charitable Immunity Act.

In addition, although the trial court ruled that MKR was a “nursing home,” the Appellate Division found that the record did not provide sufficient information to determine whether MKR is a “nursing home” for purposes of the NHA. On remand, the trial court is to allow additional discovery on the issue and utilize the Appellate Court's opinion in Bermudez v. Kessler Institute for Rehabilitation, 439 N.J. Super 45 (App. Div. 2015), for guidance. (Bermudez held that a comprehensive rehabilitation hospital is not a “nursing home” for purposes of the NHA.) If MKR is considered a “hospital,” then, the cap on damages pursuant to N.J.S.A. 2A:53A-8 would be applicable. If, however, the trial court finds that MKR is not a “hospital” for purposes of immunity under the Charitable Immunity Act, it must determine whether MKR is entitled to complete immunity under N.J.S.A. 2A:53A(7).

Analysis

The Appellate Division's holdings in Ptaszynski illustrate the issues commonly presented in a case where NHA violations are alleged. Most often, the case is truly a negligence/medical malpractice case, adorned with NHA violations, which allows the expert witnesses to cite violations of statutory provisions. The NHA is also utilized to obtain additional damages for statutory violations, often duplicative of the negligence claims, and the award of attorneys' fees and costs. In that regard, common law negligence and NHA theories are often simultaneously pursued even when no specific violations under the NHA are alleged, such as, for example, the failure to: 1) allow the resident to manage his or her own financial affairs; 2) provide privacy; 3) permit the resident to retain the services of a physician of choice; 4) permit unrestricted communication and personal visits at reasonable hours; 5) provide food that meets religious dietary requirements, etc. Instead, all too often, the NHA claims advanced are amorphous allegations that merely recast regular negligence as an NHA violation.

Examples of typical NHA provisions recast as separate NHA violations in ordinary negligence cases that occur in a nursing home or rehabilitative center include N.J.S.A. 30:13-3(h), which encompasses the catchall failure to “ensure compliance with all applicable state and federal statutes, rules and regulations,” as well as N.J.S.A. 30:13-5(j)'s failure to provide the “right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident.” According to the Ptaszynski decision, an NHA cause of action for violation of N.J.S.A. 30:13-3(h) is foreclosed, but an NHA cause of action for violation of N.J.S.A. 30:13-5(j) may still be pursued, as long as the damages are not duplicative of the damages awarded for negligence.

The other issue that remains unresolved is the constitutionality of the NHA provision, N.J.S.A. 30:13-5(j), which requires the facility to recognize the “dignity” and “individuality” of residents. It was argued before the trial and appellate courts in Ptaszynski that N.J.S.A. 30:13-5(j) should be void for vagueness, but that issue has not been decided to date.

Since the Appellate Division's decision in Ptaszynski , the plaintiff has petitioned for certification to the New Jersey Supreme Court, arguing that the Appellate Division's ruling interpreting the NHA is inconsistent with Manahawkin v. O'Neill , 217 N.J. 99 (2014), and various Appellate Division opinions. AHS has opposed the plaintiff's applications, arguing that none of those cases address the issue presented in Ptaszynski; that is, whether a plaintiff may pursue an action on behalf of a nursing home resident under the NHA to enforce a nursing home's responsibilities to “ensure compliance with all applicable state and federal statutes, rules and regulations,” using the identical facts and injuries alleged in the medical malpractice claim. N.J.S.A. 30:13-3(h).

Moreover, to the extent that the Ptaszynski plaintiff seeks review of the Appellate Division's analysis of the NHA, it was argued that any opinion rendered by the Supreme Court at this time will be merely advisory in light of the Appellate Division's ruling that additional fact finding is necessary in order to determine whether MKR is even a “nursing home” subject to the statute. In the event that the high court, nonetheless, grants the plaintiff's petition for certification on the NHA issues, AHS has cross-petitioned for certification on the related issue of the constitutionality of the NHA provision, N.J.S.A. 30:13-5(j), which provides that nursing home residents “[h]ave the right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident”.

Whether the Supreme Court will grant certification remains to be seen. However, it is clear that the landscape of nursing home and medical malpractice claims has already been changed by the Ptaszynski opinion.

Katelyn E. Cutinello , who co-authored the briefs in the Ptaszynski appeal, is a partner at Bubb, Grogan & Cocca, LLP, where she concentrates her practice on complex litigation, including medical malpractice and general liability litigation. Anthony Cocca ' who tried the Ptaszynski case, co-authored the briefs and argued the appeal ' is a partner at the firm, where he also concentrates his practice on complex litigation, including medical malpractice and general liability litigation. Robert E. Spitzer , a member of this newsletter's Board of Editors, is an attorney with Post, Polak, Goodsell, MacNeill & Strauchler, P.A.