SUPERIOR COURT OF NEW JERSEY LAW DIVISION, CIVIL & SPECIAL CIVIL PARTS ESSEX COUNTY, NEW JERSEY DOCKET #: ESX-L-877-17 A.D. #: LAURA WOODS, ) ) ) ) ) ) ) ) ) Plaintiff, v. CARE ONE, Defendant. Place: Date: TRANSCRIPT OF MOTION HEARING Essex County (Heard via Zoom) July 1, 2020 BEFORE: HON. BRIDGET A. STECHER, J.S.C. TRANSCRIPT ORDERED BY: DEBORAH R. GOUGH, ESQ. (The Gough Law Firm, LLP) APPEARANCES: JENNIFER WILSON, ESQ. (The Gough Law Firm, LLP) Attorneys for the Plaintiff. KATELYN E. CUTINELLO, ESQ. (Cocca & Cutinello, LLP) Attorneys for the Defendant. Transcriber: Amy L. Ruplall Brittany Transcription, LLC 60 Washington Street Morristown, New Jersey 07960 (973)285-9690 Digitally Recorded 2 I N D E X PAGES Colloquy 3 Motion Hearing By Ms. Cutinello By Ms. Wilson Decision of the Court 5, 27 21, 33 41 BRITTANY TRANSCRIPTION, LLC 3 1 (Audio Indiscernible at Times Due to Poor Internet 2 Connection.) 3 (** Indicates Indiscernible Audio.) 4 MS. CUTINELLO: 5 MS. WILSON: 6 MS. CUTINELLO: 7 MS. WILSON: Morning, Jennifer. Good morning. Good. How are you? We’re about to –- we’re about 8 to get a thunderstorm here, I think. 9 connection doesn’t get lost. 10 11 MS. CUTINELLO: MS. WILSON: We’ve been having like Yeah, same. MS. CUTINELLO: 15 THE COURT: 16 MS. CUTINELLO: 17 MS. WILSON: 18 THE COURT: I know, right? Good morning, ladies. Good morning. Good morning, Judge. How –- do we have everybody? I believe we do. 20 THE CLERK: Yes, we do. 21 THE COURT: Okay. 22 ** so hope there’s no connection issue. 14 19 Yup. So hopefully the horrible thunder like rolling in. 12 13 How are you? Okay. **. This is L-877-17, Woods v. Care One. This 23 is a hearing on Zoom on July 1, 2020. The matter is 24 being tagged in Courtsmart by AOC approved court clerk, 25 Yavonne Williams. BRITTANY TRANSCRIPTION, LLC 4 1 It is not allowed for anyone to make any 2 recordings of these proceedings, except for the 3 official recording made through Courtsmart, unless you 4 have the express written permission of the Assignment 5 Judge Sallyanne Floria. 6 I’m Judge Bridget Stecher. Counsel, can I have 7 your appearances? Please spell your last name for the 8 clerk because she cannot see you. 9 And also, when you go to speak today, please 10 identify that you’re speaking because Ms. Williams may 11 not be able to tell your voices apart. 12 speaking, but she can’t. 13 you directly, please identify yourself when you go to 14 say something. 15 Thank you. Okay? I can see you So unless I refer to Your appearances, please? 16 do you want to start? 17 MS. WILSON: Sure. Ms. Wilson, Good morning, Your Honor. 18 Jennifer Wilson for the –- W-I-L-S-O-N, for the 19 plaintiff, Laura Woods, individually and as executrix 20 of the Estate of James Woods, from the Gough Law Firm. 21 THE COURT: Okay. 22 MS. CUTINELLO: Thank you. Good morning, Your Honor. 23 This is Katelyn Cutinello, C-U-T-I-N-E-L-L-O, from 24 Cocca & Cutinello on behalf of the defendant, Care One. 25 THE COURT: Okay. Thank you, Ms. Cutinello. BRITTANY TRANSCRIPTION, LLC 5 1 And we’re here for oral argument on a motion 2 that’s been outstanding. 3 status of being the only motion on my 60 day list or 4 more. 5 don’t need Judge Floria breathing down my neck about 6 this. 7 8 Therefore, you need to get resolved. 11 Because I So Ms. Cutinello, it’s your motion, I believe. So please, I’ll hear from you. 9 10 You have the –- the wonderful MS. CUTINELLO: All right. Thank you very much, Your Honor. I –- I believe both parties’ papers were pretty 12 extensive and –- and address the issues. I don’t want 13 to repeat everything that’s in there but I would like 14 to highlight a few key points. 15 THE COURT: 16 MS. CUTINELLO: Okay. Foremost, this is a motion to 17 dismiss for failure to state a claim and/or for summary 18 judgment. 19 this motion will not dismiss plaintiff’s entire case. 20 In fact, this motion does not disturb in any way, shape 21 or form plaintiff’s professional negligence claim. 22 course, those claims are disputed, but that would be 23 the fight that the parties will have to have at trial. 24 And –- and I think that that’s the point here. 25 Partial summary judgment though. This is a professional negligence case. BRITTANY TRANSCRIPTION, LLC And –- and The Of 6 1 statutes and regulatory noncompliance claims are not 2 appropriately brought in this case. 3 the gross negligence and the punitive damages claims 4 are not appropriate here either. 5 And additionally, And so I think there’s, on the scope, the stat –- 6 statutory and regulatory noncompliance part of it. 7 so we have moved to dismiss the New Jersey Nursing Home 8 Act responsibilities and rights claims; the OBRA 9 regulations, which are set forth at 42 CFR 43; and the 10 standards for licensure of long-term care facilities. 11 Those are state statutory regulations. 12 And And so plaintiff, in their papers, has conceded 13 and withdrawn the claims for statutory and regulatory 14 noncompliance under the NHA responsibilities, which is 15 30:13-3; the OBRA regulations, 42 CFR 43; and the 16 standards for licensure of long-term care facilities. 17 Because those statutes and regulations do not set forth 18 a private cause of action. 19 the Nursing Home Act, or NHA, Rights Claim, which is 20 set forth at N.J.S.A. 30:13-5. 21 22 And so that leaves us with So while the –- and –- and the –THE COURT: Be –- before you continue, Ms. 23 Wilson, do you concede you were –- you are withdrawing 24 ** OBRA, the licensure claims or the NHA 25 responsibilities claims? Which would be –- BRITTANY TRANSCRIPTION, LLC 7 1 MS. WILSON: 2 THE COURT: 3 Yes. -- warranted under Pt –- Ptaszynski. 4 MS. WILSON: Right. So just to be clear, 5 yes, the –- we understand that there’s no direct right 6 to recover for a violation of the responsibilities 7 regulations. 8 that clearly the regulations can be used by our expert 9 as evidence of a violation of the standard of care. 10 But yes, I agree with her in that regard. However, we do dispute that we believe ** 11 I think she’s right. 12 what we’re actually fighting about so that we **. 13 THE COURT: It’s a good idea. It’s –- Let’s narrow I –- I just figured since we’re 14 saying that that’s a point of agreement, let’s clarify 15 it now. 16 of care in a little while. 17 Okay. 18 19 And you’re right, we’ll discuss the standard Go ahead, Ms. Cutinello. MS. CUTINELLO: Thank you. Thank you, Your Honor. Yeah, so I think both parties agree there’s no 20 private cause of action for those statutory regulatory 21 portions. 22 So I think that’s where the dispute lies. 23 There’s a dispute about the rights section. I appreciate what Ms. –- Ms. Wilson is saying. 24 You know, the statute for regulations may be a source 25 of the standard of care. And I don’t think we’re BRITTANY TRANSCRIPTION, LLC 8 1 asking for a ruling on that by the Judge right now. 2 Most of the evidence ** that would have to be handled 3 by the trial judge. 4 whether the experts relied upon in their report; 5 whether the statutes, the language in them, is, you 6 know, complies with the **; did they have anything that 7 says, you know, the highest or the best. 8 You know, those are all issues. 9 Whether the statutes apply; And I think right now, we’re just trying to figure out what there’s a 10 cause of action for or not. 11 page on that part. 12 I think we’re on the same So turning to the NHA rights claim, 30:13-5. 13 There are multiple reasons why there’s no actionable 14 rights claim in this case. 15 actionable rights claim in other cases, but not this 16 one. 17 threefold. 18 There could be an And so the reasons for that are, I think, One, Mr. Woods was admitted to Care One’s Subacute 19 Rehabilitation Unit for short-term rehabilitation, and 20 that subacute rehabilitation where Mr. Woods was 21 admitted for short-term rehabilitation is not a, quote, 22 unquote, nursing home as defined by the NHA. 23 therefore not subject to the NHA. 24 25 It is Plaintiff had the burden of proof to prove that Care One was in fact a nursing home. They ** to rehab, BRITTANY TRANSCRIPTION, LLC 9 1 Mr. Woods was in a nursing home subject to that. 2 submit that plaintiffs failed in their burden. 3 And I So first and foremost, the NHA defines a nursing 4 home at 30:13-2, subsection C. I’m not going to recite 5 the whole –- whole definition because I think Your 6 Honor has it in our papers. 7 portions and the essential elements that the Appellate 8 Division found were the, quote, unquote, essential 9 elements in Ptaszynski v. Atlantic Health Systems was But I think the pertinent 10 that it has to be a facility for extended medical 11 nursing treatment or care, and we put that the 12 individuals are in need of. 13 treatment or care on a continuing basis. 14 They’re in need of such And that term continuing basis is the language 15 that Ptaszynski had found was pertinent essential 16 element. 17 the Appellate Division held was the appropriate 18 analysis is how the unit at issue actually operated, 19 regardless of the type of license it held or whether it 20 was subject to certain standards that apply to the care 21 provided to persons in nursing homes. 22 And what the –- what the Ptaszynski Court in That was the argument in Ptaszynski. It was, 23 well, the license is for long-term care and the –- you 24 know, they are subject to the statutes and regulations. 25 Therefore, it meets the definition of a nursing home. BRITTANY TRANSCRIPTION, LLC 10 1 And the Appellate Division found that that was not the 2 pur –- those two factors raised by the plaintiff in 3 Ptaszynski were not sufficient to find that they were a 4 nursing home. 5 And those are the same two factors that 6 plaintiff’s counsel has raised in this case. 7 Appellate Division already found that that’s not 8 enough. 9 nursing home as defined by the NHA, nowhere in there The Because if you look at the definition of a 10 does it state that the license is –- is –- is for the 11 definition. 12 Appellate Division also found, that that’s not a 13 determinative factor. 14 It’s not in there. And so instead they said how the unit operates. 15 So that brings us this case. 16 operate? 17 And that’s what the How did this unit Mr. Woods was admitted to Care One Subacute Rehab 18 for short-term rehabilitation following his discharge 19 from Morristown Memorial Hospital after he had fallen 20 at home and broke his hip. 21 long-term care. He was never admitted for He was never in a long-term care unit. 22 Mr. Woods’ Care One chart sets this forth. 23 believe it was at Exhibit B, I attached the admission 24 record and transfer forms, which it was on the records 25 in the Care One chart that it specifically states it BRITTANY TRANSCRIPTION, LLC And I 11 1 was short-term rehab with anticipated discharge home 2 and the circumstances of Mr. Woods’ admission. 3 Also –- (Phone Rings.) 4 THE COURT: Go ahead. 5 MS. CUTINELLO: Okay. 6 They also do not meet the requirements of the 7 statute because his admission, in fact, was short-term. 8 He was there for 68 days total. 9 8th of 2016. 10 11 And the nature of his admission, meaning the –- in sub –- 12 (Phone Rings.) 13 THE COURT: 14 MS. CUTINELLO: 15 THE COURT: 16 I’m sorry, counsel. No, no problem. Can’t ** in the house, unfortunately, because I’m also on emergent duty. 17 MS. CUTINELLO: 18 THE COURT: 19 From June 2nd to August Oh, goodness. Okay. I –- So if it rings again and it’s the sheriff, I’m going to have to take it. 20 MS. CUTINELLO: 21 THE COURT: 22 MS. CUTINELLO: Okay. Okay. Go ahead. No problem. And I’ll 23 apologize in advance if my dog comes in and starts 24 barking at any point in time, too, because we’re all at 25 home **. BRITTANY TRANSCRIPTION, LLC 12 1 THE COURT: 2 MS. CUTINELLO: 3 So –- so yes. Yes. So far, he’s being good. So the other thing is in a subacute 4 rehab, the acuity of patients are higher. 5 more frequently by physicians. 6 long-term care, the –- the regulations state you only 7 have to be seen by a doctor once every 30 days for the 8 first 90 days and then once every 60. 9 They’re seen So, for example, a In –- in a subacute rehab setting, you’re seen by 10 doctors much more frequently because you’re subacute. 11 You’re post an acute hospitalization. 12 managed by physicians and specialists frequently. 13 You’re getting physical therapy, occupational and 14 speech therapy sometimes, depending on your needs. You’re being 15 And so here, Mr. Woods was seen many, many times 16 by his physicians, including his attending physician, 17 infectious disease, a wound doctor and other 18 specialists during his two month admission. 19 about the circumstances of his admission either comply 20 with that statute. 21 So therefore, under the Ptaszynski controlling 22 law, we don’t meet the essential element of a 23 continuing basis. 24 this isn’t a nursing home. 25 So nothing And under the facts in this case, And ** had raised some arguments that Mr. Woods BRITTANY TRANSCRIPTION, LLC 13 1 was convalescing at Care One and therefore met the 2 definition. 3 when they talk about convalescing, they talk about 4 people who have acute or chronic illnesses or injury, 5 physical disability or are convalescing or are in need 6 of assistance in bathing, dressing, or some other type 7 of supervision. 8 9 However, if you look at the definition, This applied to basically every person who’s receiving medical care in any type of setting. In the 10 hospital. 11 care. 12 apply to any type of setting. 13 supposed to apply to any type of setting. 14 definition makes it clear it’s only individuals who are 15 in need of such care or treatment on a continuing 16 basis. 17 medical nursing treatment. 18 for extended care and on a continuing basis. 19 You know, those –- those individuals need They have chronic illness or injury. That could But –- but it’s not The And they’re in a facility, a unit for extended So they have to be there So it doesn’t apply to this case because, again, 20 he was only there for short-term rehab with the intent 21 to be discharged home. 22 The other argument raised by plaintiff was that 23 Care One is a registered licensed nursing home. 24 the definition does not include the license as a factor 25 and neither did the Appellate Division find that to be BRITTANY TRANSCRIPTION, LLC Again, 14 1 2 persuasive. It was not enough. And so Care One does in fact have a long-term care 3 unit, but Mr. Woods just never was there. 4 If he was in the long-term care unit, we wouldn’t be 5 having this discussion. 6 That’s all. And so that kind of segues into –- so if it’s 7 we’re not a nursing home, then none of these rights 8 violations apply. 9 second part. 10 And that kind of segues into my Even if the Court found that we were a nursing 11 home, or found that there’s not enough to say -- 12 there’s not enough to say that we’re not a nursing home 13 at this point in time –- because plaintiff has to move 14 for summary judgment saying that we are. 15 we can’t unilaterally just **. 16 So, you know, I suppose if the Court said I can’t decide on this 17 record that you’re not a nursing home –- I think you 18 clearly can under the case law. 19 plaintiffs still fail and the Court can still dismiss 20 it at this point in time because plaintiff does not 21 allege a rights claim. 22 claim. 23 that argument. 24 25 But if not, the Not –- not an actual rights And that –- and it actually comes along with If you look at the rights section and what are the rights, they talk about the right to manage their own BRITTANY TRANSCRIPTION, LLC 15 1 financial affairs, wear your own clothing, maintain 2 their own personal property in their living quarters, 3 receive correspondence, have the right to privacy, you 4 can still have your own personal physician and, you 5 know, be able to have unrestricted communication and, 6 you know, meet with individuals of the opposite sex, 7 receive certain food that you want. 8 9 These are all things that apply to someone who is living at a facility. Who’s residing there. Who’s 10 living there. 11 life. 12 there isn’t one of those true rights claims in this 13 case. 14 Oftentimes for the remainder of their That’s a, quote, unquote, nursing home. And so Instead, what plaintiff is trying to do is take 15 negligence claims and recast them under the rights 16 section that states you should have a right to a safe 17 and decent living environment and dignity and 18 individuality. 19 really apply to this. 20 environment? 21 never intended to live at Care One. 22 for subacute rehab to be discharged home. 23 Well, that language too doesn’t even Safe and decent living Mr. Woods was not living at Care One. He He was admitted And so you can’t just recast professional 24 negligence under a rights claim and claim it’s a right. 25 Because here, what we have that are being advanced in BRITTANY TRANSCRIPTION, LLC 16 1 this case are that the failure to offload or provide 2 certain personal care or assessment or treatment led to 3 pressure wounds. 4 that are alleged as part of the negligence claim and 5 alleged as part of the rights claim. 6 separate conduct. 7 no separate facts. 8 **. 9 ** the development of pressure wounds There’s no There’s no separate harm. There’s There’s no separate injury. All And so therefore, it’s not a rights claim. And in –- in addition, I believe there’s also –- 10 there’s also a claim raised in ** Subsection J with the 11 –- with the safe and decent living environment and 12 dignity. 13 constitutional, civil or legal right, there’s 14 absolutely no facts or evidence to support a 15 constitutional, civil or legal right being violated 16 here. 17 ulcer developed. 18 19 20 But M, to not be deprived of a In fact, it’s the same conduct, that a pressure So –- so therefore, this isn’t a true rights claim. It’s just recasting of negligence. And in addition, the Court in Ptaszynski found 21 that that’s inappropriate. If you’re just –- if you 22 have the same harm and the same damages, that’s not 23 permitted because it allows for double recovery under 24 the ** case and under the Ptaszynski case. 25 this case, because we have the same allegations being BRITTANY TRANSCRIPTION, LLC And so in 17 1 recasted under this rights section, it would result in 2 double recovery. 3 And I understand the argument that plaintiff’s 4 make. And they say, well, in Ptaszynski, the Court 5 said that if the jury was properly instructed in 6 Ptaszynski, you can allocate between the two to prevent 7 double recovery. 8 things. And so, but it’s important, two 9 One, in Ptaszynski, the Court, at pages 39 and 40, 10 specifically references the fact that the plaintiff has 11 argued that they suffered different injuries and harm 12 from the negligence and the violation of the NHA. 13 That’s not present in this case. 14 And number two, a jury can only be instructed to 15 allocate between the negligence and rights if there are 16 separate damages in the first place. 17 provide a jury charge to correct the lack of a prima 18 facie case in the first instance. 19 prima facie case of negligence and rights because all 20 we have done is recast negligence under rights. 21 therefore, a jury charge will not fix that issue. 22 And then finally –- and I have to raise this The Court cannot We don’t have a So 23 because I think it is important. This section where 24 we’re talking about dignity, individuality, safe and 25 decent, I believe is constitutionally void for BRITTANY TRANSCRIPTION, LLC 18 1 vagueness. 2 And it’s clear under the law because we’re talking 3 when you’re trying to recast negligence of professional 4 healthcare providers, like nurses and doctors that are 5 entitled to an affidavit of merit and are held to a 6 standard of care. 7 not being held to a standard of safe and decent or 8 dignity. 9 never know what type of conduct should or shouldn’t be That’s ** standard of care. It’s not defined by the statute. 10 allowed to comply with that. 11 the standard of care. 12 regard as well. 13 14 15 They’re They would Instead, they’re held to So I think it also fails in that So that then takes me to the final two arguments, which are gross negligence and punitive damages. So this clearly –- and I –- I know the Court’s 16 familiar with some of the facts of this case. 17 dispute a negligence claim. 18 dispute the negligence. We The parties vehemently 19 Plaintiff’s experts, defense experts, you know, 20 there’s –- this is a gentlemen who had already had a 21 left below the knee amputation. 22 disease. 23 another hip. 24 has other gastrointestinal issues going on. 25 He had diabetes. He had cardiovascular He had anemia. He broke Now, he had trauma on the other side. He And –- and so there’s a claim as to whether or not BRITTANY TRANSCRIPTION, LLC 19 1 the right lower extremity wound that developed was 2 vascular or diabetic as opposed to from pressure. 3 so these negligence claims are –- are very disputed. 4 And And so in this case, based on all those facts and 5 based on, you know, the expert reports, and even what 6 plaintiff’s experts concede was done –- there was a 7 care plan. 8 given. 9 wound specialist. Nurses assess daily. Multiple nursing care was given. There was There were attending physicians. 10 There were vascular surgeons. 11 things done. 12 Nursing care was There was all these That’s not –- that does not meet the standard for 13 gross negligence. Gross negligence is a failure to use 14 even slight care. There was no slight care here. 15 Whether or not they complied with the standard of care 16 or not is a different issue. 17 gross negligence in this case. 18 use even slight care. 19 regard. 20 But there’s –- there’s no There’s no failure to The facts are very clear in that And then punitive damages. Punitive damages 21 requires even more. No amount of negligence or gross 22 negligence can be used to sustain the burden for 23 punitive damages. 24 need clear and convincing evidence of potential 25 misconduct, willful or wan –- or deliberate recklessly That’s under the Edwards case. BRITTANY TRANSCRIPTION, LLC You 20 1 indifferent. 2 from some facts beyond negligence. 3 You need to have some positive evil ** There have been absolutely none submitted here. 4 None. 5 Woods or that they were deliberately or recklessly 6 indifferent. 7 they –- they believed was good and that –- that their 8 own experts dispute whether they provided ** care or 9 not. 10 No evidence that anyone intended to hurt Mr. They provided care. They provided what And then the other issue is under the law, even if 11 there were such –- such facts against an individual 12 employee, plaintiff –- there is no vicarious punitive 13 damages allowed in New Jersey. 14 Lubow case in the Appellate Division. 15 assess punitive damages against the employer 16 vicariously for the actions of its staff. 17 permitted. 18 That’s the Enright v. You cannot It’s not And so the only individual here named is Care One. 19 ** healthcare, and so you can only ever be vicariously 20 liable for its staff. 21 cited all these cases in my brief before. 22 because Care One can only ever be vicarious, there’s no 23 vicarious punitive damages allowed as a matter of law. 24 You know, not even as fact; just as a matter of law. 25 THE COURT: And that’s Weiss v. Goldfarb. Okay. Ms. Wilson? BRITTANY TRANSCRIPTION, LLC I And so 21 1 2 3 MS. WILSON: Good morning. Or actually, almost good afternoon, Your Honor. I –- I’m going to start with the –- with the 4 notion that Care One is not a nursing home argument 5 because I think it’s probably the easiest. 6 I cited two cases, Masero (ph) and Healy. And 7 Healy is a case that both myself and Ms. Cutinello 8 orally argued before Judge Padovano on the precise 9 issues that are before the Court today. 10 It was a –- it was a Care One pressure ulcer case. 11 There were –- it was a subacute admission. 12 know, somebody was there subacute. 13 there’s the argument of the rights not applying because 14 it was the same injuries as the negligence claims. 15 Punitives should be dismissed. 16 It was, you We have –- there –- And I think it’s –- it’s worth Your Honor –- I’m 17 sure you have already –- but rereading and –- and 18 seeing the arguments that were discussed and decided by 19 Judge Padovano because I think he got it right. 20 again, the arguments were identical and we won on all 21 of the issues in that case. 22 And, The notion that Care One –- which is licensed as a 23 long-term care facility, as a nursing home, gets 24 federal money by Medicare as a nursing home. 25 notion that if someone is there for rehab, they have a BRITTANY TRANSCRIPTION, LLC The 22 1 different set of rights than somebody who is at the 2 facility for long-term care is –- is, quite frankly, 3 preposterous. 4 there and that –- for –- for short-term rehab which who 5 then transitions to long-term care, which it very often 6 occurs with residents once they see their condition and 7 realize they sadly cannot return home, that all of a 8 sudden, they need to be told, just letting you know, 9 starting now, you have a new set of rights. 10 11 That would mean that somebody who was It does not make sense. The Ptaszynski case dealt with a standalone rehab 12 facility, not a facility that provided both long-term 13 care and short-term rehab in the same facility. 14 The Nursing Home Act specifically says a nursing 15 home is an institution. So they’re not saying, you 16 know, it’s an institution in part. 17 institution. It’s an 18 The convalescing, the meaning of the –- the 19 meaning of the –- of –- of care for the ADL’s, that’s 20 exactly why Mr. –- Mr. Woods, a blind man with a –- 21 with one leg already missing, he was there, he was 22 living there. 23 or long-term, he was living there. 24 25 Whether he was living there short-term The Masero case also had a rehab and the Court agreed that they were a nursing home. BRITTANY TRANSCRIPTION, LLC 23 1 It –- it’s just, that argument to me would create 2 the most ridiculous law and would not support the 3 purpose of the Nursing Home Act, which is to protect 4 the vulnerable and the elderly. 5 Woods. 6 People just like Mr. So I –- you know, I submit, if you have any 7 questions on this issue or if there’s something that 8 I’m missing. 9 preposterous and it’s not in the spirit or in –- in 10 I believe that this argument is following the law. 11 We already went over that the vi –- that the 12 violation of regulations can be used as evidence of the 13 standard of care, so I’m not going to –- I’m not going 14 to talk about that. 15 Residents’ rights. Ms. Cutinello is –- is –- 16 actually has some factual errors. 17 injuries claimed. 18 There are separate There is allegations, there is testimony by the 19 daughter that her father, who was blind and unable to 20 see food but certainly able to smell it, was often left 21 in his room, needing the food to be cut up, was unable 22 to do that. 23 up, not being fed, which is absolutely a dignity 24 violation. 25 Was left with food in his room, not cut This is akin to the argument in the Healy case BRITTANY TRANSCRIPTION, LLC 24 1 that –- that Judge Padovano decided, saying that, no, 2 it’s a dignity violation. 3 evidence that the –- there was testimony that our 4 plaintiff’s mother was left in her own feces. 5 bed, in her own feces. 6 And in that case, there was That’s a separate harm from the development of a 7 pressure ulcer. 8 a separate harm, that’s a separate harm. 9 dignity. 10 11 12 In a If there is the argument that you need It’s the And that’s something for a jury to decide. Whether there’s a –- a dignity violation. Court –- the Courts have held that juries –- that 13 –- that’s not even something that an expert needs to –- 14 to say. 15 say, I know what dignity is. 16 if they believe that somebody able to smell but not 17 able to cut their own food and was hungry and wanted 18 their food and couldn’t get it because the staff didn’t 19 help someone who needed that help, that’s a dignity 20 violation. 21 Okay. That’s something for a jury to look at and And the jury can decide That’s a separate injury. And if there’s a proper jury instruction 22 given, which is exactly what Ptaszynski said, there 23 won’t be double recovery. 24 know, this is the –- this is for the residents’ rights. 25 This is for the negligence. Here are the injuries. You And they can separate it. BRITTANY TRANSCRIPTION, LLC 25 1 2 So, you know, that’s what should be done. The –- the defendant made this motion as a motion 3 to dismiss. It’s actually an inappropriate motion to 4 be made because, as Judge –- again, I surely laid all 5 this out in papers –- that needs to be made before 6 pleadings. 7 based on the sufficiency of the pleadings. 8 motion, according to the motion to dismiss language, 9 needs to be converted to a summary judgment motion. Before an answer is filed. And that’s So that So 10 in essence, if there’s any issue of fact, that needs to 11 be left to a jury. 12 There’s certainly issues of facts that based on, 13 you know, the evidence presented that Care One’s 14 getting money to –- to –- as a nursing home. 15 identify themselves on various documents that I 16 attached to my opposition papers as a nursing home. 17 They Mr. Woods was clearly living there, convalescing. 18 Whether he meant to live there forever or meant to live 19 there until he, again, convalescing, get better and 20 then perhaps go home, it’s –- it’s still a nursing 21 home. 22 And they certainly can’t be getting money from the 23 government and running a facility and getting money 24 from Mr. Woods as well, even though he’s in short-term 25 rehab, and yet, on the other side, say but –- but His rights don’t change based on his status. BRITTANY TRANSCRIPTION, LLC 26 1 because he was living in a different unit, we don’t 2 have to, you know, his rights, those don’t count. 3 4 5 Okay. There’s certainly an issue with that, if nothing else to that. And the dignity violation, again, I mean, I –- I 6 believe that it’s a separate injury. We’ve shown it. 7 There’s, you know, the –- the being left –- even being 8 left in bed when you need to move around. 9 there’s an injury of a pressure ulcer developing. Even, But 10 that’s an injury of the dignity of not being moved, not 11 –- not being given a boot. 12 daughter came in and the boot that he needed to prevent 13 that wound on his heel was across the room and not –- 14 not on his foot when it needed to be on his foot. 15 So there’s evidence. There’s testimony that the Whether or not they’re 16 disputed, that’s not for the Court to decide. 17 –- there’s evidence of these violations and those need 18 to be brought to a jury. 19 There’s What Judge Padovano did at the end of the day was 20 dis –- was –- was he denied the motion with the ** 21 plaintiff’s case. 22 that’s a different motion. 23 enough, we believe, enough to go to a jury. 24 25 Plaintiff puts their case on and But right now, there’s As to punitive and gross negligence, again, those issues were discussed in detail in –- in the case we BRITTANY TRANSCRIPTION, LLC 27 1 argued, the Healy case that we argued before Judge 2 Padovano. 3 The same issues. It’s a systemic failure. By –- by way of the 4 surveys that were –- the Care One surveys and the 5 citations that Care One had prior to Mr. Woods’ 6 admission. 7 care plans, failure to prevent pressure ulcers from 8 materializing. 9 in 2016, which is what Ms. Cutinello put in her papers, The same things, failure to properly create Now, the fact that they weren’t cited 10 that’s of no merit. 11 knew this. 12 that could rise to the level of gross negligence. 13 They were cited prior. They all These are pervasive actions by Care One and And again, it’s –- it’s the –- it’s the –- it’s a 14 jury determination at this point. 15 It’s a -- it’s a –- you know, this is the summary 16 judgment standard. 17 the surveys and by the testimony that they could rise 18 to that level. 19 Okay. THE COURT: 21 MS. CUTINELLO: 23 And we have shown enough by And I believe –- I believe that’s it. 20 22 There’s enough. Okay. Thank you. Ms. Cutinello? Thank you, Your Honor. I will try to be brief. So I heard some issue –- well, first and foremost, 24 the Healy case that Ms. Wilson is citing is from 25 another trial Court. It’s not binding on this Court. BRITTANY TRANSCRIPTION, LLC 28 1 This Court may not rely upon it. 2 And I presented to the Court ** contrary cases. 3 And in fact, Judge De La Cruz in Bergen County found 4 that Care One’s Subacute Rehab isn’t a nursing home. 5 It doesn’t meet the definition. 6 that the NHA rights don’t apply to negligence claims. 7 Judge Quinn entered an order dismissing. 8 9 Judge Brogan found I also submitted the order from Essex County, the Friedenberg case, where –- the Judge’s name **, of 10 course, slipped my memory at this point, but I know he 11 **. 12 as rights and that’s all that was being there. 13 But he found that you can’t just recast negligence So there are numerous contrary opinions. But I 14 think when we look at the facts of this case, that it 15 does not apply here. 16 And so plaintiff’s argument is that, oh, you’re 17 somewhere where there are nursing home residents so 18 that means that the rights apply because you’re 19 convalescing. 20 You’re –- you’re vulnerable. Well, you can extend plaintiff’s argument, then 21 every place where there’s vulnerable and elderly 22 people, the rights would apply. 23 would apply to the hospital. 24 term care hospital. 25 hospital. So then the NHA plan It would apply to a long- It would apply to a rehab It would apply to other rehab settings. BRITTANY TRANSCRIPTION, LLC It 29 1 would apply to everywhere. 2 definition says it only applies to patients that get 3 extended medical care through on a continuing basis. 4 But it doesn’t. The And that’s specifically what the Ptaszynski Court 5 held. That’s the controlling case law that we have 6 here. Not another trial Court’s opinion, even though, 7 you know, I had them in my paper. 8 Ptaszynski said that’s not enough. 9 raised anything beyond exactly what was raised in Ev –- Pt –Plaintiff hasn’t 10 Ptaszynski and was rejected as insufficient. 11 And –- and –- and counsel is incorrect. In 12 Ptaszynski, there were two different types of beds. 13 And they –- they included, number one, long-term care 14 beds. 15 a long-term care bed. 16 that in practice, even though they had to comply with 17 certain standards and regulations, in practice, 18 patients there remained on average for 30 days. 19 Sometimes, longer; sometimes, less. 20 short-term. 21 And that’s where Ms. Ptaszynski was. She was in But there was ** in the case They were there In other words, ** discharged **. Just like Care One, where they were there on 22 average 100 days or less. ** they be discharged. 23 same exact factual scenario. 24 was only there for 68 days. 25 subacute level of care. The And in fact, Mr. Woods And he was getting the BRITTANY TRANSCRIPTION, LLC 30 1 So you can’t hold someone to re –- having to give 2 them the standard of care that you would find in a 3 subacute setting, and then, at the same time, also say 4 you’re subject to the NHA, which is long-term care in a 5 different setting. 6 they contradict each other. 7 They’re –- they don’t –- they ca –- So you’re trying –- you’re trying to get –- get –- 8 get it from both angles. I’m going to hold you to the 9 standard of care that I require in subacute, but I’m 10 also going to say you’re a nursing home rights. 11 can’t have both. 12 And so here, it’s not ridiculous. You It’s clearly 13 supported by the law. 14 forms list out separately subacute and nursing home. 15 And in fact, even the ** on the So this isn’t a novel issue. This is something 16 that needs to be decided by the Court as set forth by 17 Ptaszynski and the law that they set forth there. 18 so I think that that’s clear and that doesn’t apply. 19 And Secondly, with regard to the rights, there –- 20 there’s a big distinction between this case and Healy. 21 In Healy, there were certain acts ** regarding the 22 statutes contained in their reports. 23 reference by either of the plaintiff’s experts to the 24 reports ** discovery period in this case. 25 experts don’t even reference it. There was no such BRITTANY TRANSCRIPTION, LLC None. The 31 1 And there most certainly needs to be causation of 2 harm attached to any violation. 3 NHA is not negligence per se and will always need 4 causation. 5 day. 6 need separate harm. 7 here. 8 9 Because violation of The Ptaszynski Court makes that clear as Ptaszynski says not only do you need harm, you And so we don’t have separate harm I’ve heard an argument from plaintiff that there’s a –- a limited issue with regard to him eating ** food 10 that wasn’t cut for him. 11 to stipulate that her NHA claim is limited to that, I 12 -- I don’t think that’s appropriate. 13 that applies here. 14 saying every single allegation I have in this case of 15 medical and nursing negligence with regard to pressure 16 ulcer development being recast under the NHA rights for 17 a safe and decent living environment. 18 different. 19 Well, if the plaintiff wants I don’t think But that’s very different than It’s very, very And I still –- I –- I don’t have any causation 20 testimony from any expert to support that claim with 21 regard to food. 22 to some issue that he had. 23 expert doesn’t even reference the statutes or the 24 issue. 25 in this case with regard to that. That that led to malnutrition that led There’s none. Her medical So there’s no genuine issue of material facts BRITTANY TRANSCRIPTION, LLC 32 1 You know, and then with regard to gross negligence 2 and punitive damages, I think it’s very clear that they 3 don’t apply here. 4 And plaintiff’s argument is that they should 5 because of a prior departmental survey years before in 6 2012 and ’15. 7 were individual patients. 8 rose beyond any other –- they’re not even negligent. 9 Those found whatever they found. They There’s no evidence that it Those administrative surveys are not evidence of 10 negligence. 11 There’s no opportunity to cross-examine witnesses. 12 They’re not evidential then. 13 admissible in this case. 14 going to be a trial within a trial of the evidence of 15 prior bad acts. 16 this case. 17 They ** or held in evidence presented. They’re not going to be At all. Because there’s Trying to ** evidence of bad acts in It’s not –- it’s not going to come in. But regardless, at the end of the day, it’s –- the 18 fact that there’s ever been negligence ever before has 19 nothing to do with ** care was or wasn’t. 20 failure or slight care here. 21 those surveys were all submitted with plans of 22 correction that were accepted by the state in 2012 and 23 2015. 24 in 2016 when Mr. Woods was there. 25 ongoing pattern of anything. There’s no There’s no –- and –- and There were no deficiencies for pressure claims None. There’s no And there’s certainly BRITTANY TRANSCRIPTION, LLC 33 1 2 none with regard to Mr. Woods. I still have not heard one iota of factual 3 evidence to support that anyone intentionally, 4 willfully, wantonly, deliberately, recklessly did 5 anything with regard to caring for Mr. Woods. 6 It’s all negligence. 7 can’t do that. 8 9 None. And the Edwards case says you And again, we believe –- quite frankly, I think the facts kind of get us off path. Because we believe 10 you can’t assess those –- those punitive damages 11 vicariously against the employer. 12 as a matter of law under Enright. 13 THE COURT: 14 MS. WILSON: Okay. It’s not permissible Thank you. Ms. Wilson? Yeah, I mean we can probably go 15 back and forth for the rest of the day, but I’m going 16 to try to limit the responses. 17 I think the Healy case, which clearly lays out 18 what we –- you know, many of the issues with regards to 19 punitives being allowed to go to the jury; gross 20 negligence being allowed to go to the jury. 21 facts as –- as in this case. 22 The same The –- the –- the –- Care One –- and –- and they 23 have the case De La Cruz. I submit to you, to read the 24 transcripts of those. 25 Cruz so I can’t tell you exactly, other than what I’m I –- I –- I was not at De La BRITTANY TRANSCRIPTION, LLC 34 1 reading, what happened. 2 the judge got it wrong and the judge got it right in 3 the other two cases that I cited. 4 But I just submit to you that The Friedenberg case, I’m not going to go into it, 5 but we have a –- a footnote, is completely off point 6 and is not persuasive on –- on any matters of bearing 7 before this Court. 8 With Ptaszynski, the Court specifically found on 9 the record that it wasn’t clear that the facility was, 10 quote, permitted to provide care on a continuing basis. 11 Which is an essential element of the definition of a 12 nursing home. 13 is operating providing care to people on a continuing 14 basis. Clearly, there’s no –- clearly, Care One 15 And I submit, 68 days, 88 days –- I mean, the only 16 reason he left Care One was because he had gangrene and 17 a pressure ulcer and had to be treated at a hospital. 18 So he could have been there well over 68 days. 19 timeframe is –- you know, I’ll certainly ** there 30 20 days. 21 So the 60 days, 100 days. But that, again, it specifically says that it –- 22 it’s an institution which maintains and operates 23 facilities for extended nursing treatment. 24 facility is op -- that certainly ** a hospital. 25 is, you’re –- you’re there for your short-term rehab, BRITTANY TRANSCRIPTION, LLC The This 35 1 your long-term rehab. 2 You’re there because you need assistance with your 3 ADL’s. 4 You’re there convalescing. Mr. Woods, again, he’s blind. He has –- he was an 5 amputee before even the care provided at Care One. 6 clearly needs assistance with his ADL’s. 7 there because he needs –- he’s –- he’s –- you know, for 8 an extended period of time. 9 He He’s clearly So I think that’s **. And again, the argument with the –- the dignity, 10 the harm is the violation of the dignity. 11 harm. 12 in itself. 13 issue. 14 That’s the I mean, you know, violation of dignity is harm So, you know, that acts as a separate And clearly, I’m not willing to stipulate that 15 that’s the only –- the only violation of dignity 16 because I do think you can –- juries will get it. 17 you give them a proper instruction, they will separate 18 it. 19 If And there won’t be a double recovery. And the fact that the expert doesn’t –- first of 20 all, our medical doctor expert does mention a violation 21 of –- of dignity. 22 jury is entitled to hear the facts and they can come to 23 the conclusion whether they believe there was a 24 violation of dignity. 25 they can recover damages for it. But it’s not required. It’s –- the And that is in itself, you know, BRITTANY TRANSCRIPTION, LLC 36 1 I’m not –- with the punitives and the gross, we’ve 2 gone back and forth. 3 That I do –- whether or not you were cited the year of, 4 the year prior, they were cited continuously for these 5 things. 6 failure. 7 evidence. 8 9 So I will just submit the same. It’s evidence. It’s evidence of systemic They can argue that that is not, but it’s And this is a summary judgment standard. that’s what’s important here. I think They’re –- they’re 10 casting it as a motion to dismiss, but it has to be 11 looked at as a summary judgment motion with all 12 inferences and –- in favor of the –- the plaintiff. 13 So I think that covers it. 14 15 16 THE COURT: Thank you. All right. Let me just ask a couple questions. First of all, this admission was directly from the 17 hospital to the subacute center, correct? 18 never evaluated by Care One’s long-term care facility 19 for compliance or an assessment of what ADL’s he 20 required? 21 22 MS. WILSON: No, he was definitely –- was assessed. 23 THE COURT: 24 MS. WILSON: 25 So he was first. Well –I’m sorry. I ** talk. Who would you like to answer that? BRITTANY TRANSCRIPTION, LLC ** talk I’m sorry. 37 1 THE COURT: Well, it doesn’t matter to me. 2 Just, you know, someone needs to. 3 you’re Care One so. 4 MS. CUTINELLO: 5 THE COURT: Ms. Cutinello, Sure. Did they get an assessment as if 6 he were being admitted to the long-term care facility 7 with an assessment of his deficiencies regarding his 8 ADL’s, et cetera? 9 MS. CUTINELLO: Okay. So he was admitted 10 directly from Morristown Memorial Hospital to Care One 11 for sub –- 12 THE COURT: 13 MS. CUTINELLO: 14 To Care One, right? Correct. For the –- into the –- the subacute unit for short-term rehab. 15 THE COURT: Right. 16 MS. CUTINELLO: Exhibit B. And so because 17 he’s there for rehabilitation, the rehabilitation 18 track, PT, OT assesses him for his abilities, just like 19 they do in the hospital. 20 THE COURT: 21 MS. CUTINELLO: But it’s not –- Correct. -- a restorative nursing 22 program in long-term care. 23 typically get physical therapy, occupational therapy. 24 25 They –- they don’t But yes, of course he’s assessed, just like you would be in a hospital setting. You know, what he can BRITTANY TRANSCRIPTION, LLC 38 1 and can’t do. But that was never done in a long-term 2 care setting. It was in the subacute. 3 MS. WILSON: But Your –- Your Honor, I do 4 want to add something. 5 PT and OT. 6 I don’t know –- I mean, this is not something I’m privy 7 to. 8 form, the admission assessment form, is different than 9 the admission assessment form or if they have different 10 11 The assessment was not just by He has an initial nursing assessment. And I –- I’ve come ** other cases –- whether that categories. The fact is he was assessed. Yes, he was admitted to the –- I’m not disputing 12 –- he was admitted for short-term rehab. 13 assessed for his activities of daily living. 14 a nursing assessment admission form. 15 had ** long-term care unit, I don’t have the answer to 16 that right now. 17 MS. CUTINELLO: But he was There was So, but he never Sure, ** that nurses assess 18 their ability to perform activities of daily living in 19 the hospital, too. 20 determinative factor. 21 I mean, I don’t think that’s a It’s, you know, if you’re getting intensive 22 physical therapy, if you’re there for rehab or if 23 you’re there for long-term care. 24 long-term care unit or short-term care. 25 short-term for rehab. If you’re in the He was in He was getting rehab. BRITTANY TRANSCRIPTION, LLC You know, 39 1 2 I think that’s the determining factor. THE COURT: No, I understand that he came 3 from the hospital directly to the subacute center. 4 guess my question is was there ever any ** assessment 5 at the time that he was initially admitted. 6 I Because, as you’re both aware, when you’re 7 admitted to long-term care, the evaluation is a little 8 bit more detailed in terms of cognitive and physical 9 restrictions, ADL requirements. And very often, your 10 fee structure is based –- not that it was in the 11 subacute center, but your ultimate fee structure in a 12 long-term care facility, if you’re admitted as a 13 resident, will vary depending upon your needs and your 14 ADL requirements. 15 16 17 MS. WILSON: They have **. Sure, they have different **. Yeah. THE COURT: If –- so that sort of an 18 assessment was never done. 19 admission to a subacute center with the patient’s 20 assessment so –- insofar as what are his medical needs 21 at this time. 22 MS. WILSON: Went right from a hospital No, I –- actually, Your Honor, I 23 disagree with that. 24 admission assessment, it’s very comprehensive. 25 I think if you look at the It talks about his cognitive. It talks about his BRITTANY TRANSCRIPTION, LLC 40 1 physical. 2 with. 3 nursing assessment for his fall risk, for his –- all –- 4 the same –- I don’t –- I mean, if –- if you’re looking 5 for additional information, we can probably, you know, 6 submit that separately. 7 same comprehensive assessment that would have been 8 done. 9 It talks about what they need to help him It’s not just a medical assessment. It’s a But I submit that it’s the And the MDS forms that were filed are the same 10 forms that would be filed regardless of the unit he’s 11 in. 12 what his needs are. They’re getting the same money from Medicare for 13 Regardless of what unit he’s in. MS. CUTINELLO: That’s not true at all. He’s 14 actually –- there’s different –- there’s different 15 settings. 16 receive ** doctor assessment, just like he would in a 17 hospital. 18 doctor assessment. 19 Either in long-term or subacute. You get a nursing assessment. goals. 21 admission. 22 environment. 23 Because he wasn’t in long-term care. 25 You get a But he was not ever assessed for long-term care 20 24 He does He was not ever assessed for long-term care You know, transitioning patients into this I mean, none of that stuff occurred. MS. WILSON: I think –- I think we’re charging into territories that have not been briefed BRITTANY TRANSCRIPTION, LLC 41 1 on. And if this is something Your Honor –- 2 THE COURT: 3 MS. WILSON: 4 No, that’s my –-- feels is relevant, I think we should have the opportunity. 5 THE COURT: 6 MS. WILSON: -- fault. Because I think that the 7 assessment was the same comprehensive assessment that 8 -- that was done when they have to admit someone. 9 There were care plans on admission. We have goals. 10 I mean, if that’s something you –- that you 11 believe is relevant, I believe that –- that this 12 assessment, there –- there was no difference. 13 don’t believe there was a difference, but again, you 14 have to –- to –- to ** to get that information ** 15 issue. 16 that I did with Care One in terms of –- 17 18 19 Or, I I didn’t see ** from any of the other cases THE COURT: Well, I don’t really think that that would be dispositive one way or the other so. Anything else anybody wants to add? 20 MS. CUTINELLO: 21 MS. WILSON: 22 THE COURT: No, Your Honor. No, Your Honor. All right. Thank you. This matter comes 23 before the Court by way of a motion to dismiss or a 24 motion for partial summary judgment specified counts of 25 plaintiff Woods’ complaint filed on behalf of BRITTANY TRANSCRIPTION, LLC 42 1 defendant, Care One. 2 injuries sustained by plaintiff, James Woods, while 3 under the care of defendant, Care One. 4 filed in February 2017. 5 December 15, 2019. 6 The matter arises from alleged The case was And the dis –- date of First, defendant Care One argues that all claims 7 that rely on the Nursing Home Responsibilities and 8 Residents’ Rights Act, or the NHA, must be dismissed as 9 the NHA applies only to long-term facilities and Care 10 One, the unit where Mr. Woods was, is a subacute unit 11 separate and distinct from a long-term care facility. 12 Care One contends that plaintiff Woods was not 13 admitted as a long-term patient, only stayed for 68 14 days and was not provided care on a continuing basis, 15 which is the standard under Ptaszynski v. Atlantic 16 Health Systems, Inc., 440 NJ Super 24 at pages 42-44, 17 Appellate Division, 2015. 18 Care One asserts that the Courts have not 19 permitted plaintiffs to pursue a private right of 20 action to enforce the responsibility provision of the 21 NHA or the associated OBRA regulations. 22 Super at 33, 34. 23 Ptaszynski, NJ Care One further argues that Woods’ allegations do 24 not constitute a claim of violation of any of the 25 rights listed in N.J.S.A. 30:13-15, as Woods is merely BRITTANY TRANSCRIPTION, LLC 43 1 attempting to bring a medical malpractice action 2 through a proposed rights violation and that the 3 statute is void for vagueness. 4 NJ 586, 591 (1985). State v. Cameron, 100 5 Care One also argues that counts two and all 6 punitive damages claims must be dismissed as plaintiff 7 Woods failed to demonstrate that Care One showed 8 disregard for the safety and rights of the plaintiff by 9 acting intentionally, recklessly, or with knowledge 10 that such conduct had a high degree of probability of 11 resulting in harm to the plaintiff. 12 In opposition, Woods argues that Ptaszynski 13 authorizes private rights of action for nursing 14 residents for enforcement of the rights section of the 15 Act and for general deviation from the standard **. 16 Woods contends that Care One violated the NHA and 17 deviated from the standard of care by failing to 18 provide individualized treatment, such as ensuring he 19 was moved, turned over appropriately and adequately 20 monitoring his pressure ulcers to the point where a 21 wound was left to fester and ultimately took Woods’ 22 life. 23 In re Conroy, 98 NJ 321 at 377, 78 (1985). Woods asserts that Ptaszynski does not bar 24 recovery for both medical negligence and residents’ 25 rights violation as double recovery can be avoided by BRITTANY TRANSCRIPTION, LLC 44 1 proper jury instruction. 2 provide the proof that a rights violation, as a 3 deprivation of dignity can be adequately assessed by a 4 jury. 5 One’s continuous and systematic lack of care. 6 Ptaszynski at 33, 34. 7 An expert is not needed to And punitive damages are warranted due to Care Woods further argues that Care One is a registered 8 nursing home with the State of New Jersey that 9 identifies as a nursing home provider on several forms. 10 And the fact that Woods was admitted for short-term 11 care has no bearing on the classification of the 12 facility as both subacute and long-term care facilities 13 are considered within the same category as a long-term 14 nursing home. 15 In reply, defendant Care One argues that –- 16 reiterates its argument that the NHA does not apply as 17 Care One is not a nursing home; Woods was never 18 admitted to the long-term care unit; and the facility’s 19 license –- excuse me –- license is not a factor to be 20 used in the determination of whether the facility is a 21 nursing home. 22 Care One, once again, argues that Woods cannot 23 claim that Care One violated his rights under the NHA 24 as Woods’ only ** were claims of medical negligence 25 rather than separate or distinct claims for BRITTANY TRANSCRIPTION, LLC 45 1 interference with Woods’ right of dignity or a safe and 2 decent living environment, and such, double recovery –- 3 such double recovery, even with proper jury 4 instruction. 5 Care One further contends that Woods’ claims of 6 gross negligence and punitive damages fail as Woods has 7 failed to demonstrate that Care One exhibited actual 8 malice and failed to exhibit even slight deviations of 9 care. 10 The standard that applies in this matter, first of 11 all, the standard on a motion to dismiss is that every 12 defense, legal or equitable, or fact or claim for 13 relief in any complaint and crossclaim or a third-party 14 complaint shall be asserted in the answer thereto, 15 except that the following defenses, unless otherwise 16 provided by Rule 4:6-3, may, at the option of the 17 pleader, be made by motion with briefs. 18 includes E, a failure to state a claim upon which 19 relief can be granted under Rule 4:6-2e. 20 And that Even assuming that, even if we were to assume that 21 that section or that standard applies to this motion, 22 in considering a motion to dismiss under Rule 4:6-2e, 23 the Court must accept the facts asserted in the 24 pleading as true and give the benefit –- the pleader 25 the benefit of all inferences that may be drawn. BRITTANY TRANSCRIPTION, LLC 46 1 Printing Mart v. Sharp Electronics Corp., 116 NJ 739 at 2 736 (1989). 3 Care One argues that there is no cause of action 4 that should have been asserted or could have been 5 asserted in the complaint with regard to the various 6 provisions that I mentioned, which included the Nursing 7 Home Responsibilities Act, the OBRA section and 8 licensure requirements, and that the parties have 9 agreed that those claims are going to be withdrawn. 10 The plaintiff argues that the balance of the 11 motion should be decided under a summary judgment 12 standard. 13 The summary judgment standard requires that when 14 reviewing a motion for summary judgment, the Court must 15 determine whether a genuine issue of material fact is 16 in dispute. 17 considering the burden of per –- the burden of 18 persuasion at trial, the evidence submitted by the 19 parties on the motion, together with all legitimate 20 inferences therefrom favoring the non-moving party, 21 would require submission of the issues to the trier of 22 fact under Rule 4:46-2c. 23 And an issue of fact is genuine only if, When deciding a motion for summary judgment, the 24 Court must accept as true all the evidence which 25 supports the position of the party defending against BRITTANY TRANSCRIPTION, LLC 47 1 the motion and must accord him or her the benefit of 2 all legitimate inferences that can be deduced 3 therefrom. 4 motion must be denied. 5 at 174 (1991). 6 And if reasonable minds could differ, the Lanzet v. Greenberg, 126 NJ 168 In this case, since an answer has already been 7 filed in this matter and since we are considering 8 information that is beyond the four corners of the 9 initial pleading, the matter should be decided under 10 11 the summary judgment standards. In the instant matter, the Court finds that the 12 plaintiffs have established a prima facie case to 13 pursue claims under the rights section of the NHA as 14 sufficient facts have been presented with respect to 15 Care One’s potential violation of decedent’s statutory 16 rights. 17 enacted to impose certain medical rights of nursing 18 home residents, including by extension, potential 19 residents of a subacute center. 20 The NHA, here, under N.J.S.A. 3:13-1, was Plaintiff’s allegations that Care –- Care One 21 failed to develop and implement appropriate and timely 22 interventions, created necessary plans of care for 23 prevention and treatment of pressure ulcers and 24 adequately perform assessments of the skin, turn and 25 reposition every two hours and ensure that his heels BRITTANY TRANSCRIPTION, LLC 48 1 were floated, which ultimately led to his death, were 2 sufficiently pled as negligence claims. 3 question of whether or not those are also violations of 4 a nursing home residents –- of a –- of the Nursing Home 5 Act as a resident of a subacute facility is one that 6 the Court believes should be left to the jury. And to the 7 As to defendant Care One’s motion to dismiss the 8 counts of plaintiff’s complaint that pertain to gross 9 negligence and to punitive damages, the Court finds 10 that while there is a negligence claim that has been 11 presented here, the Court is reluctant on the basis of 12 the evidence that has been set forth thus far to make a 13 determination that that evidence rises to the any 14 standard clear and convincing evidence of deliberate ** 15 to the rights of the patient that would justify a claim 16 of gross negligence and the claim for punitive damages. 17 So with regard to the claimed OBRA, licensure and 18 NHA responsibilities sections of the Act, those claims 19 are dis –- are withdrawn by the plaintiff. 20 understanding the claim as to violations of the Nursing 21 Home Act rights section will survive to be determined 22 by a jury with appropriate jury instructions to avoid 23 double recovery. 24 exist. 25 claim is hereby dismissed. It’s my The negligence claim continues to And the gross negligence and punitive damages BRITTANY TRANSCRIPTION, LLC 49 1 2 MS. CUTINELLO: Honor. 3 MS. WILSON: 4 THE COURT: 5 6 7 Thank you very much, Your Thank you for your time today. Okay. Thank you. Have a good day. MS. CUTINELLO: Thank you. (Record Concluded.) BRITTANY TRANSCRIPTION, LLC CERTIFICATION I, Amy L. Ruplall, the assigned transcriber, do hereby certify the foregoing transcript of proceedings, Digitally Recorded, index number from 11:31:00 to 12:32:33 is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate non-compressed transcript of the proceedings as recorded. _____708 cc_______ Amy L. Ruplall Brittany Transcription, LLC Agency Name N.J. Cert. Number August 5, 2020___ Date BRITTANY TRANSCRIPTION, LLC