Kenneth Vercammen (732) 572-0500

2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee, GP on Personal Injury and lectured at the ABA Annual Meeting attended by 10,000 attorneys and professionals.

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Saturday, January 31, 2015

Nursing Home Patient Bill of Rights 30:13-3 Responsibilities of nursing homes.

Nursing  Home Patient Bill of Rights
30:13-3 Responsibilities of nursing homes.
3.Every nursing home shall have the responsibility for:

a.Maintaining a complete record of all funds, personal property and possessions of a nursing home resident from any source whatsoever, which have been deposited for safekeeping with the nursing home for use by the resident. This record shall contain a listing of all deposits and withdrawals transacted, and these shall be substantiated by receipts given to the resident or his guardian. A nursing home shall provide to each resident or his guardian a quarterly statement which shall account for all of such resident's property on deposit at the beginning of the accounting period, all deposits and withdrawals transacted during the period, and the property on deposit at the end of the period. The resident or his guardian shall be allowed daily access to his property on deposit during specific periods established by the nursing home for such transactions at a reasonable hour. A nursing home may, at its own discretion, place a limitation as to dollar value and size of any personal property accepted for safekeeping.

b.Providing for the spiritual needs and wants of residents by notifying, at a resident's request, a clergyman of the resident's choice and allowing unlimited visits by such clergyman. Arrangements shall be made, at the resident's expense, for attendance at religious services of his choice when requested. No religious beliefs or practices, or any attendance at religious services, shall be imposed upon any resident.

c.Admitting only that number of residents for which it reasonably believes it can safely and adequately provide nursing care. Any applicant for admission to a nursing home who is denied such admission shall be given the reason for such denial in writing.

d.Ensuring that an applicant for admission or a resident is treated without discrimination as to age, race, religion, sex or national origin. However, the participation of a resident in recreational activities, meals or other social functions may be restricted or prohibited if recommended by a resident's attending physician in writing and consented to by the resident.

e.Ensuring that no resident shall be subjected to physical restraints except upon written orders of an attending physician for a specific period of time when necessary to protect such resident from injury to himself or others. Restraints shall not be employed for purposes of punishment or the convenience of any nursing home staff personnel. The confinement of a resident in a locked room shall be prohibited.

f.Ensuring that drugs and other medications shall not be employed for purposes of punishment, for convenience of any nursing home staff personnel or in such quantities so as to interfere with a resident's rehabilitation or his normal living activities.

g.Permitting citizens, with the consent of the resident being visited, legal services programs, employees of the Office of Public Defender and employees and volunteers of the Office of the Ombudsman for the Institutionalized Elderly, whose purposes include rendering assistance without charge to nursing home residents, full and free access to the nursing home in order to visit with and make personal, social and legal services available to all residents and to assist and advise residents in the assertion of their rights with respect to the nursing home, involved governmental agencies and the judicial system.

(1)Such access shall be permitted by the nursing home at a reasonable hour.

(2)Such access shall not substantially disrupt the provision of nursing and other care to residents in the nursing home.

(3)All persons entering a nursing home pursuant to this section shall promptly notify the person in charge of their presence. They shall, upon request, produce identification to substantiate their identity. No such person shall enter the immediate living area of any resident without first identifying himself and then receiving permission from the resident to enter. The rights of other residents present in the room shall be respected. A resident shall have the right to terminate a visit by a person having access to his living area pursuant to this section at any time. Any communication whatsoever between a resident and such person shall be confidential in nature, unless the resident authorizes the release of such communication in writing.

h.Ensuring compliance with all applicable State and federal statutes and rules and regulations.

i.Ensuring that every resident, prior to or at the time of admission and during his stay, shall receive a written statement of the services provided by the nursing home, including those required to be offered by the nursing home on an as-needed basis, and of related charges, including any charges for services not covered under Title XVIII and Title XIX of the Social Security Act, as amended, or not covered by the nursing home's basic per diem rate. This statement shall further include the payment, fee, deposit and refund policy of the nursing home.

j.Ensuring that a prospective resident or the resident's family or guardian receives a copy of the contract or agreement between the nursing home and the resident prior to or upon the resident's admission.

Nursing Home Patient Bill of Rights 30:13-2 Definitions.

Nursing  Home Patient Bill of Rights
 30:13-2  Definitions.
2.For the purposes of this act:

a."Administrator" means any individual who is charged with the general administration or supervision of a nursing home whether or not such individual has an ownership interest in such home and whether or not his function and duties are shared with one or more other individuals.

b."Guardian" means a person, appointed by a court of competent jurisdiction, who shall have the right to manage the financial affairs and protect the rights of any nursing home resident who has been declared an incapacitated person.  In no case shall the guardian of a nursing home resident be affiliated with a nursing home, its operations, its staff personnel or a nursing home administrator in any manner whatsoever.

c."Nursing home"  means 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.

d."Reasonable hour" means any time between the hours of 8 a.m. and 8 p.m. daily.

e."Resident" means any individual receiving extended medical or nursing  treatment or care at a nursing home.

Nursing Home Patient Bill of Rights 30:13-1 . Legislative findings and declarations

court permitted suit against nursing home PROFETA v dover

court permitted suit against nursing home

Superior Court of New Jersey, Appellate Division.
Decided March 14, 1983.
 189 N.J. Super. 83 (1983)
458 A.2d 1307

Before Judges MICHELS and TRAUTWEIN.

Plaintiffs appeal from a summary judgment dismissing their complaint. The complaint, in four counts, alleged that defendant Dover Christian Nursing Home (nursing home) violated its statutory duty to notify next of kin of any change in a patient's medical condition (count I); nursing home was negligent in its failure to give such timely notice (count II); nursing home's failure to give notice arose out of willful and wanton conduct (count III), and the home's disregard of its statutory duty was intentional (count IV). Plaintiffs sought both compensatory damages, based on their mental pain and anguish, and punitive damages. Defendant answered and joined the patient's private physician as a third-party defendant. Nursing home then moved for summary judgment, which was granted. This appeal followed.
[189 N.J. Super. 85]

From the pleadings and affidavits before the trial court we glean the following undisputed facts. Plaintiffs Lynn and Fred Profeta are the daughter and grandson of Ferdinand Virgilio. Virgilio was admitted to nursing home on October 26, 1977.1 Nursing home is a wholly-owned subsidiary of the Christian Research Institute, a Delaware corporation organized as a nonprofit religious and educational corporation authorized to do business in New Jersey. Virgilio became seriously ill on February 11, 1978. Plaintiffs were not notified of this fact. On February 12, 1978 Lynn Profeta, in making a regular visit to the nursing home, found her father vomitting on himself and unable to breathe. She immediately had her father transferred to a hospital but he died on February 14, 1978. Plaintiffs filed their complaint against the nursing home on February 8, 1980.
Plaintiffs sought recovery under N.J.S.A. 30:13-1 et seq., entitled "An act concerning the responsibilities of nursing homes and the rights of nursing home residents" and more commonly known as the nursing home residents' "bill of rights." The declared purpose of the act is to advance the well-being of the residents by defining their rights so that these rights may be better asserted. A finding that "residents of nursing homes are all too often given inferior treatment" led to the inclusion in the act of detailed standards of care for all nursing homes. Senate Institutions, Health and Welfare Committee, Statement to Senate Bill No. 944 (June 4, 1976).
In granting defendant's motion for summary judgment the trial judge concluded:
I am of the opinion that such a claim, the infliction of the emotional distress of a daughter and a grandson as a result of the death of a nursing home resident because of failure to notify, does not give rise to a statutorily-created or other cause of action in this jurisdiction.
[189 N.J. Super. 86]

I make brief reference without discussing the case in detail to Portee v. Jaffee, 83 [84] N.J. 88, decision of our New Jersey Supreme Court, 1980, in which
Justice Pashman carefully outlined the circumstances under which in this jurisdiction a person who does not have potential for personal injury himself or herself can recover for distress resulting from perceiving the negligently-inflicted injuries over another.
That's the limitation on that case. There was nothing perceived here. Everything occurred after the fact insofar as any emotional distress could be concerned.
Our careful review of the pleadings, the affidavits offered on the motion for summary judgment and the briefs discloses that the sole relevant issue on appeal is whether plaintiffs have requisite standing to bring suit under N.J.S.A. 30:13-8.2 That statute states:
Any person or resident whose rights as defined herein are violated shall have a cause of action against any person committing such violation. The Department of Health may maintain an action in the name of the State to enforce the provisions of this act and any rules or regulations promulgated pursuant to this act. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for their violation. Any plaintiff who prevails in any such action shall be entitled to recover reasonable attorney's fees and costs of the action.
Another portion of the act states that "every nursing home shall have the responsibility for ... [e]nsuring compliance with all applicable State and Federal statutes and rules and regulations." N.J.S.A. 30:13-3(h). Plaintiffs point to a regulation, the present N.J.A.C. 8:30-2.4(a), as defining the right encompassed by the act which they claim has been violated. That regulation reads in pertinent part:
Written policies and procedures shall be established for notifying sponsors or next of kin in the event of significant changes in patient's status, patient charges, billings or other relevant administrative matters.
N.J.S.A. 30:13-8 allows actions to enforce the act and to recover damages for its violation. The statute provides that "[a]ny person or resident whose rights as defined herein are violated shall have a cause of action against any person committing such violation." Both parties ask this court to interpret the phrase "any person ... whose rights are defined herein."
[189 N.J. Super. 87]

Plaintiffs seek an interpretation which would include a resident's next of kin as a person who could sue while defendant contends that the phrase is intended to include only a resident or his legal guardian.
In this regard we strive to determine legislative intention. Did the Legislature intend that only residents or their guardians have the sole right to sue to enforce rights under the statute or did they intend to include those individuals, such as the next of kin, who are named in the act and given rights incidental to that of the resident? In this sense the phrase under scrutiny is ambiguous and must be interpreted in accordance with discernible legislative intent and reasoned judgment. State v. F.W. Woolworth Co., 154 N.J.Super. 550, 553 (App.Div. 1977); Imbriacco v. Civil Service Comm'n, 150 N.J.Super. 105, 109 (App.Div. 1977); State v. Hoboken, 130 N.J. Eq. 564, 570 (Ch. 1942). Plaintiffs point to two provisions of the act where the resident's next of kin are arguably given rights. The first is N.J.S.A. 30:13-5(g), which reads in pertinent part:
Every resident of a nursing home shall ... 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. [Emphasis supplied]
This provision is the cornerstone of plaintiffs' interpretation. They argue that since next of kin are given the right to receive medical information concerning a resident, they should also be permitted to recover damages suffered as a result of a violation of that right.
The second right of the next of kin said to be provided under the act is the right to be notified of the resident's change in status, as required by N.J.A.C. 8:30-2.4(a).
After careful consideration of the purposes and policies of the act we conclude that a proper interpretation of "persons whose
[189 N.J. Super. 88]

rights are defined herein" pertains only to a resident or his legal representative.
N.J.S.A. 30:13-1 announces the legislative thesis underlying the entire act:
The Legislature hereby finds and declares that the well-being of nursing home residents in the State of New Jersey requires a delineation of the responsibilities of nursing homes and a declaration of a bill of rights for such residents.
The provisions delineating the responsibilities of nursing homes (N.J.S.A. 30:13-3) and declaring the rights of their residents (N.J.S.A. 30:13-5) are the heart of the act. The remaining provisions serve only to implement these two sections. The sense of a statute is to be gathered from the whole of the expression. Martell v. Lane, 22 N.J. 110, 117 (1956). Once the "internal sense" of the law is clear it will prevail over the words of the act and "particular terms are to be made responsive to the essential principle of Law." San-Lan Builders, Inc. v. Baxendale, 28 N.J. 148, 155 (1958). See, also, State v. Carter, 64 N.J. 382, 390-391 (1974); New Jersey Builders, Owners and Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972); Wright v. Vogt, 7 N.J. 1, 6 (1951). The act at issue is clear in its purpose, and that is to advance the well-being of nursing home residents. Because the sense of the law, gathered from all internal indicia, is to aid residents, we believe the phrase "persons ... whose rights are defined herein" was intended to refer only to the resident or one asserting rights in his stead, such as a legal guardian. The asserted right of the next of kin to receive medical information concerning the resident if deemed advisable and to be informed of any significant change in the resident's status, support our conclusion. Both are primarily designed to aid the resident, when he or she is either incapable of acting in a meaningful manner on the information given or is likely to become incapable of so acting. For this reason we believe it is clear that the Legislature intended only the resident or his proxy to be able to vindicate infringement of these rights by an action for damages. Had the Legislature intended to confer this right on others, it would have explicitly done so. We therefore
[189 N.J. Super. 89]

conclude that plaintiffs have no standing to bring this suit under the act reviewed.
In view of this conclusion, it is unnecessary to address the remaining contentions and arguments of the parties.

1. Defendant's statement of facts described Ferdinand Virgilio as 96 years old and suffering from organic brain syndrome and arteriosclerosis. These facts do not appear in the record.

2. Point II of plaintiffs' brief states: Plaintiffs are suing on a statutory cause of action and requirements for a common law cause of action have no application to this case.