Estate of Renee Sahar, Etc. v. 301 Union Street, LLC

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-1103-24

ESTATE OF RENEE SAHAR, through JACK SAHAR, Executor,

Plaintiff-Respondent, v.

301 UNION STREET, LLC, d/b/a CARE ONE AT WELLINGTON,1 APPROVED FOR PUBLICATION August 24, 2026

APPELLATE DIVISION

Defendant-Appellant,

and CARE ONE, LLC,

Defendant.

____________________________

Argued March 24, 2026 – Decided August 24, 2026

Before Judges Rose, DeAlmeida and Torregrossa-

O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0338-18.

1 Care One is sometimes spelled in the record as CareOne. Consistent with the parties' designations, we use "Care One."

Anthony Cocca argued the cause for appellant (Cocca & Cutinello, LLP, attorneys; Anthony Cocca and Katelyn E. Cutinello, of counsel and on the briefs).

Jonathan F. Lauri argued the cause for respondent (Stark & Stark PC, attorneys; Jonathan F. Lauri, Denise Mariani and James T. Evans, of counsel and on the brief).

The opinion of the court was delivered by ROSE, J.A.D.

Eighty-three-year-old Renee Sahar suffered a broken hip after falling at 301 Union Street, LLC, d/b/a Care One at Wellington (defendant or Care One), during the night of April 6, 2016. Renee2 was admitted to Care One on March 3, 2016, following her hospitalization for a stroke and continued care at a rehabilitation center. At the time of her admission to Care One, Renee was partially paralyzed and suffered difficulties with motor function and self-care. By all accounts, Renee required assistance rising from bed, walking, using the toilet, and dressing. Suffering from dementia, Renee also experienced periods of confusion. Although the time frame for Renee's release was uncertain, her family anticipated Renee would return home after rehabilitation, which included physical, occupational, and speech therapy.

2 Because the parties share a surname, we use first names for clarity. No disrespect is intended.

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After her fall, Renee underwent successful hip surgery and returned to the rehabilitation center. Eventually, she was discharged and lived with her son, Jack. Renee did not return to Care One; she had resided at the facility for thirty- five days.

In January 2018, Renee filed a complaint in the Law Division against defendant and Care One, LLC, alleging nursing negligence and a violation of the Nursing Home Responsibilities and Rights of Residents Act (NHA or Act), N.J.S.A. 30:13-1 to -19.3 In its answer to the complaint, defendant acknowledged Care One was licensed and operated as a "long-term care facility."

Pertinent to this appeal, following the close of discovery, defendant moved for partial summary judgment contending, as a matter of law, Care One was not a nursing home as defined under the NHA and therefore could not be held liable for violating the statute. Defendant further contended plaintiff

3 In her complaint, Renee also asserted corporate negligence against Care One, LLC, and demanded punitive damages against all defendants. Following her death from unrelated causes, in March 2018, the Estate of Renee Sahar, through Jack Sahar (plaintiff), filed an amended complaint asserting the same causes of action as alleged in the initial complaint. The corporate negligence claim was dismissed on defendant's motion for summary judgment and, as such, Care One, LLC is not a party to this appeal. The punitive damages claim was dismissed on defendant's motion for reconsideration of the initial denial of its summary judgment motion on that issue.

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"improperly recast [the] medical/nursing malpractice [claim] as a 'rights' violation" under N.J.S.A. 30:13-5(j) of the NHA "using the same factual allegations and same exact damages."

The motion judge issued a cogent oral decision, denying defendant's application. In essence, the judge found Renee satisfied the definition of a nursing home "resident" under the Act and defendant's recasting argument was "based on a selective reading of plaintiff's allegations." At the close of all evidence, the trial judge implicitly granted plaintiff's in limine motion for a finding that Care One was a nursing home; the judge also denied defendant's motion for a new trial on that basis.

Initially scheduled for May 10, 2022, trial was adjourned multiple times at the request of defense counsel in view of his trial schedule. Ultimately, trial commenced on September 3, 2024, and concluded on September 12, 2024.

Less than one month before trial began, on August 12, 2024, defendant sent correspondence to plaintiff amending its answers to interrogatories, including about fifty pages of documents, which were the subject of a November 8, 2019 protective order, and the testimony of Care One employees named therein, among defendant's potential trial evidence. Defendant contended our Supreme Court's decision in Keyworth v. CareOne at Madison Avenue, 258 N.J.

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359 (2024), issued one week earlier on August 5, 2024, interpreted the Patient Safety Act, N.J.S.A. 26:2H-12.23 to -12.25, to permit the disclosure of documents pertaining to incident investigations conducted in nursing homes and assisted living facilities. Defendant thus contended the documents it successfully moved to preclude from discovery now were available for use in the litigation. Defendant did not, however, move to reopen discovery or for reconsideration of the protective order.

During the ensuing conference, the presiding judge denied defendant's application, finding the matter had been pending six years and, during that time, defendant continuously maintained its position the documents must not be disclosed to plaintiff, litigating the issue before the trial court, Appellate Division, and Supreme Court. The judge concluded it would be "patently unfair" for defendant to reference the long-excluded documents at trial.

The following day, during the de bene esse deposition of Renee's nursing expert, Carol White, RN, PhD, defense counsel referenced one of the documents and plaintiff's counsel preserved her objections to that document and two others on hearsay grounds. The trial judge, who had not decided the pretrial motions, granted plaintiff's motion in limine to redact those portions of Dr. White's testimony discussing the documents and bar their use at trial.

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At trial, plaintiff presented the testimony of: Jack; Renee's daughter, Ilene Handal; and Renee's orthopedic surgeon, Jonathan Scherl, MD. Plaintiff also moved into evidence Dr. White's redacted deposition testimony. Defendant called its: nursing expert, Marianna Resnick, RN; geriatric medicine expert, Sharon Brangman, MD; and orthopedic expert, Richard Schenk, MD.

During the charge conference, defendant requested a Scafidi4 instruction regarding Renee's preexisting conditions—osteoporosis, dementia, and stroke— to ensure plaintiff recovered damages attributable only to Care One's alleged negligence in failing to prevent Renee's fall and hip fracture, not the percentage attributable to her increased risk of falling because of those conditions. The judge issued the charge only regarding Renee's osteoporosis. At plaintiff's request, over defendant's objection, the judge's charge was limited to the negligence claim.

By a six-to-one vote, the jury found plaintiff failed to demonstrate Care One deviated from the applicable standard of care in its treatment of Renee. The

4 Scafidi v. Seiler, 119 N.J. 93 (1990).

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jury unanimously found plaintiff proved Care One violated the NHA and the violation caused $525,000 in damages. 5 In a written decision, the judge denied defendant's ensuing motions for judgment notwithstanding the verdict, a new trial, or remittitur, and granted plaintiff's application for counsel fees. Memorialized by a November 18, 2024 final judgment, plaintiff was awarded: $525,000 in compensatory damages; $116,812.50 in prejudgment interest; $69,228.39 in reimbursement of a stipulated Medicare lien; $67,044.79 in costs pursuant to Rule 4:42-8 and N.J.S.A. 30:13-8; and $208,770 in attorney fees pursuant to Rule 4:42-9(a)(8) and N.J.S.A. 30:13-8. Plaintiff's total recovery against defendant was $986,855.68.

In its merits brief, defendant raises three arguments seeking reversal of the jury verdict and a new trial. In its first point, defendant contends: the NHA claim does not apply in this case as Renee was admitted to Care One for short- term rehabilitation; plaintiff neither alleged nor presented evidence supporting its NHA rights claim; and N.J.S.A. 30:13-5(j) is void for vagueness. In its second point, defendant argues, by redacting Dr. White's deposition testimony,

5 The verdict sheet was not provided in the parties' appellate submissions. Prior to oral argument, at our request, defendant submitted the verdict sheet.

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the trial court improperly curtailed its questioning of Dr. White, creating "a false narrative" Care One improperly left Renee unattended and unsupervised prior to her fall. In its final point, defendant asserts presentation of plaintiff's NHA claim to the jury and the evidentiary errors resulted in: inadequate jury charges and interrogatories; a verdict against the weight of the evidence; and excessive damages.6 During oral argument before us, defendant cited our decision in Emmons v. Elmwood Hills Healthcare Center, LLC, 484 N.J. Super. 240 (App. Div. 2026), issued four days prior. Defendant argued Emmons supports its contention the right to recover damages for nursing home negligence is distinct from a violation of the NHA. After oral argument, defendant filed a supplemental letter, pursuant to Rule 2:6-11(d), memorializing its argument. Plaintiff filed a responding supplemental letter, countering Emmons supports its position the same evidence adduced at trial may support a negligence claim and NHA violation.

6 After the appellate briefs were filed, the trial judge submitted an amplification statement pursuant to Rule 2:5-1(d), addressing "the various issues raised by [Care One]."

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Having considered defendant's contentions in view of the governing law and the record provided on appeal, we are unpersuaded reversal and a new trial, or remittitur of damages is warranted. We therefore affirm.

I. The NHA

A. Applicability of the NHA to Care One Defendant does not dispute Care One was licensed as a long-term care facility when Renee was admitted. Instead, defendant argues applicability of the NHA does not hinge on licensure. Defendant maintains the NHA does not apply to Care One because the facility was not operating as a "nursing home" as defined under N.J.S.A. 30:13-2(c) in its care and treatment of Renee. Defendant asserts Renee was admitted to Care One for short-term "rehabilitation" in the facility's "subacute unit" rather than "extended care on a continuing basis" as contemplated by the Act. Accordingly, defendant argues plaintiff's NHA claim was erroneously submitted to the jury.

We review de novo a trial court's decision on matters of statutory interpretation. See Grillo v. State, 469 N.J. Super. 267, 274 (App. Div. 2021). "The object of statutory interpretation is to effectuate the intent of the Legislature, as evidenced by the plain language of the statute, its legislative history and underlying policy, and concepts of reasonableness." State v.

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Courtney, 243 N.J. 77, 85 (2020). We examine "the words of the statute and ascribe[] to them their ordinary meaning," reading "disputed language 'in context with related provisions so as to give sense to the legislation as a whole.'" Ryan v. Renny, 203 N.J. 37, 54 (2010) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

"When the Legislature sets out to define a specific term, 'the courts are bound by that definition.'" State v. S.B., 230 N.J. 62, 68 (2017) (quoting Febbi v. Bd. of Rev., 35 N.J. 601, 606 (1961)). Stated another way, "[i]f the statute is clear on its face, the analysis is complete, and it must be enforced according to its terms." Pfannenstein v. Surrey, 475 N.J. Super. 83, 95 (App. Div. 2023) (citing Hubbard v. Reed, 168 N.J. 387, 392 (2001)). On the other hand, if the terms of the statute are ambiguous, a court may consider extrinsic interpretive aids, such as legislative history. DiProspero, 183 N.J. at 492-93. Further, when "a literal interpretation of a provision would lead to an absurd result or would be inconsistent with the statute's overall purpose, 'that interpretation should be rejected' and 'the spirit of the law should control.'" Pfannenstein, 475 N.J. Super. at 95 (quoting Hubbard 168 N.J. at 392-93).

Recently, we reiterated the legislative history underpinning the 1976 enactment of the NHA. Citing the Senate Statement, we recognized "the

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Legislature sought to protect residents of nursing homes from 'inferior treatment,'" Emmons, 484 N.J. Super. at 249 (quoting S. Insts., Health & Welfare Comm. Statement to S. 944, at 1 (June 4, 1976)), including "the right 'to a safe and decent living environment,'" ibid. (quoting N.J.S.A. 30:13-5(j)). See also Bermudez v. Kessler Inst. for Rehab., 439 N.J. Super. 45, 53-56 (App. Div. 2015); Est. of Burns v. Care One at Stanwick, LLC, 468 N.J. Super. 306, 313 (App. Div. 2021). Indeed, the driving force of the enactment was the Legislature's intent to address concerns about "the condition of the nursing homes and the personal care facilities for the aged in this State." Bermudez, 439 N.J. Super. at 53 (quoting S.C.R. 15 (1974)).

Under the Act, at the time of plaintiff's admission to Care One, a "[n]ursing home" was defined as

any institution, whether operated for profit or not, which maintains and operates facilities for extended medical and nursing treatment or care for two or more nonrelated individuals who are suffering from acute or chronic illness or injury, or are crippled, convalescent or infirm and are in need of such treatment or care on a continuing basis. Infirm is construed to mean that an individual is in need of assistance in bathing, dressing or some type of supervision.

[N.J.S.A. 30:13-2(c) (1997).]

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"Resident" was defined under the Act as "any individual receiving extended medical or nursing treatment or care at a nursing home." N.J.S.A. 30:13-2(e) (1997).

Amended in 2017, N.J.S.A. 30:13-2(c) was revised, but the substance of the definition remained the same:

any institution, whether operated for profit or not, which maintains and operates facilities for extended medical and nursing treatment or care for two or more nonrelated individuals with acute or chronic illness or injury, or a physical disability, or who are convalescing, or who are in need of assistance in bathing, dressing, or some other type of supervision, and are in need of such treatment or care on a continuing basis.

No revisions were made to the definition of "resident."

N.J.S.A. 30:13-5 sets forth the "bill of rights" outlined in the NHA's legislative history. S. Insts., Health & Welfare Comm., Statement to S. 944, at 1. Comparing the enactment to its federal counterpart, the Legislature declared , "this bill makes similar standards of care applicable to all nursing homes and nursing home residents in the State and, moreover, makes such standards an expression of legislative policy and intent." Ibid. Relevant here, N.J.S.A. 30:13-5(j) provides every nursing home resident shall

[h]ave the right to a safe and decent living environment and considerate and respectful care that recognizes the

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dignity and individuality of the resident, including the right to expect and receive appropriate assessment, management and treatment of pain as an integral component of that person's care consistent with sound nursing and medical practices.

Pursuant to N.J.S.A. 30:13-8(a), any person whose rights under the Act are violated "shall have a cause of action against any person committing such violation" and is entitled "to recover actual and punitive damages" as well as "reasonable attorney's fees and costs of the action." Under certain circumstances not relevant here, treble damages may be awarded. N.J.S.A. 30:13-8(b).

The regulations pertaining to the Standards for Licensure of Long-Term Care Facilities, N.J.A.C. 8:39-1.1 to -47.5 (LTCF Licensure Standards), contain similar definitions. N.J.A.C. 8:39-1.2 defines "[r]esident" as "a person who resides in the facility and is in need of 24-hour continuous nursing supervision." The same regulation states: "'Facility' means a facility or distinct part of a facility licensed by the New Jersey Department of Health as a long-term care facility." N.J.A.C. 8:39-1.2.

In the Health Care Facilities Planning Act (HCFPA), N.J.S.A. 26:2H-1 to -26, the Legislature charged the Department with "central responsibility for the development and administration of the State's policy with respect to" health care institutions. N.J.S.A. 26:2H-1. On April 18, 2024, the Department issued

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guidance addressing "a request for an interpretation of the rules governing long- term care facilities, commonly known as nursing homes," particularly "whether individuals receiving subacute care are considered 'residents'" pursuant to the LTCF Licensure Standards. Citing the definitions of "resident" and "facility" set forth in the regulation, the Department noted "N.J.A.C. 8:39-1.2 does not limit the definition of 'resident' based on the type or duration of care an individual receives in the long-term care facility."

Accordingly, "the Department interpret[ed] 'resident' as used in N.J.A.C.

8:39 to encompass every individual who resides in the long-term care facility, including, but not limited to, individuals in the facility receiving subacute care and long-term care." The Department concluded, "All residents are entitled to the protections afforded under N.J.A.C. 8:39," with certain exceptions inapplicable here. Those protections include the "[r]esident rights" set forth in N.J.A.C. 8:39-4.1.7

7 Similar to the bill of rights set forth in N.J.S.A. 30:13-5, a nursing home resident's rights under the regulation provide each resident "shall be entitled to . . . live in safe, decent, and clean conditions in a nursing home that does not admit more residents than it can safely accommodate while providing adequate nursing care," N.J.A.C. 8:39-4.1(a)(11), and "be treated with courtesy, consideration, and respect for the resident's dignity and individuality," N.J.A.C. 8:39-4.1(a)(12).

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In the present matter, the motion judge noted defendant did not dispute Care One was licensed by the Department as a long-term care facility. Citing N.J.A.C. 8:39-1.1(a), the judge recognized "[a] long-term care facility is commonly referred to as a nursing home." The judge found defendant had "not produced any evidence to support its contention that it is a subacute care facility, or anything other than a long-term care facility." The judge was satisfied Care One met the definition of a nursing home under N.J.S.A. 30:13-2(c). Rejecting defendant's "attempt[] to carve out the unit where [Renee] was a patient as an area within a nursing home that does not fall within the definition of a nursing home," the judge found defendant failed to support its claim with binding authority.

Noting defendant failed to "provide any authority for its contention that [she] was not an 'individual receiving extended medical or nursing treatment or care,'" the motion judge further determined Renee was a nursing home "resident" under N.J.S.A. 30:13-2(e). In doing so, the judge recognized Renee was "admitted for an indefinite period of time for medical care following a stroke " and had "already been a patient for over one month at Care One" when she left for the hospital on April 7, 2016. The judge concluded "it appear[ed] that [Renee] would have stayed at Care One for an even longer period of time had

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she not been injured" and there was "no indication that she was scheduled to be discharged" at any specific point.

Addressing plaintiff's in limine motion prior to the charge conference, the trial judge declined to depart from the motion judge's determination. In his oral decision, the judge found "nothing occurred during trial" suggesting Renee was not a resident as defined under the NHA. The judge further determined, as a matter of law, Care One was a nursing home.

On de novo review, we discern no basis to disturb the judges' decisions.

Defendant does not dispute when Renee was treated at Care One, its license provided the facility was authorized to operate as a "long-term care facility" with "128 long-term care beds." Although defendant correctly asserts the definition of "nursing home" in N.J.S.A. 30:13-2(c) does not reference the type of license issued to a facility, a license may be considered when determining whether the facility meets that definition. See Ptaszynski v. Atl. Health Sys., 440 N.J. Super. 24, 43 (App. Div. 2015) (considering defendant's licenses as a "comprehensive rehabilitation hospital" and a "hospital-based, long-term care facility" when finding it was unclear whether the facility was a nursing home under the NHA); Bermudez, 439 N.J. Super. at 51-52 (considering defendant's

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license as a "rehabilitation hospital" defined under N.J.A.C. 8:33-1.3 when finding the facility was not a nursing home under the NHA).

The Department's April 18, 2024 guidance concerning the definition of "resident" under N.J.A.C. 8:39-1.2 further supports our decision. As the Department recognized, "long-term care facilities" are "commonly known as nursing homes." See N.J.A.C. 8:39-1.1 (setting forth the scope and purpose of the LTCF Licensing Standards). As we note above, the similarity of the language in the Department's regulations concerning "resident rights" to the Act's language in the "bill of rights" further evinces the Legislature's broad concern for the safety and wellbeing of those receiving care in such facilities.

Moreover, N.J.A.C. 8:33H-1.1(g) of the HCFPA restricts the use of "long-

term care beds" in long-term care facilities to "residents who require general nursing home care." Entities approved for long-term care beds "shall not admit residents who require a different licensing category of care, such as comprehensive rehabilitation," except in specific emergency situations. Ibid. Although the regulations state "[s]ome patients in nursing homes may, on occasion, require rehabilitative care," they also provide these services "are distinguished from comprehensive rehabilitation, which may only be offered by a licensed rehabilitation hospital." N.J.A.C. 8:33H-1.1(e). Thus, the regulations

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also establish an entity, such as Care One, licensed as a long-term care facility, may provide rehabilitation services to patients, such as Renee, and these facilities are considered "nursing homes" by the Department.

We recognize the Department's regulatory definitions are not dispositive on the issue of the Legislature's intent behind the statutory definitions contained in the Act. Nonetheless, we note the Legislature granted the Department power to "adopt reasonable rules and regulations . . . to carry out its functions and duties under [the NHA] and to effectuate its purposes." N.J.S.A. 30:13-10. In our view, this interpretation of the NHA's definitions is consonant with those purposes.

In reaching our decision, we reject defendant's reprised argument that the unit rendering Renee's care operated as a short-term rehabilitation unit, thus removing it from the statutory definition of a nursing home set forth in N.J.S.A. 30:13-2(c). It is undisputed Care One was a facility providing "nursing treatment or care for two or more nonrelated individuals." See ibid. Nor is it disputed Renee suffered a stroke—an "acute" condition, which left her with "chronic" symptoms including partial paralysis and other difficulties with motor function—and was admitted to Care One to recover her health and strength through the facility's rehabilitation services following that "illness or injury."

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For the entire duration of her stay at Care One, Renee required assistance with basic activities of daily life, including bathing, using the toilet, dressing, and walking.

The only true dispute defendant raises concerning the NHA's definition of "nursing home" is whether Care One provided "extended" care generally under N.J.S.A. 30:13-2(c), and whether Renee specifically was a "resident" receiving "extended" care under N.J.S.A. 30:13-2(e). To support its argument, defendant has consistently claimed Renee was admitted to Care One for rehabilitation with the goal of eventually returning home, in contrast to patients who move into "nursing home" facilities for the remainder of their lives. However, the NHA's definition of "nursing home" encompasses entities providing care to patients with acute conditions who are convalescing. The definition thus encompasses patients similar to Renee, who was admitted to Care One for continued recovery, anticipating she would be discharged upon sufficient improvement. Notably, the statute does not dictate a facility's care must be provided on a "permanent" basis for qualification as a nursing home.

Instead, the term chosen by the Legislature to describe the type of care nursing homes provide is "extended." The Merriam-Webster Dictionary defines "extended," in relevant part, as "drawn out in length especially of time," and

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cites as an example, "an extended visit."8 This definition does not imply the term "extended care" applies only when a patient will never leave the facility where such care is provided; the "ordinary meaning" of "extended," which controls where the word is undefined, encompasses an extended stay. See S.B., 230 N.J. at 68.

It is undisputed Renee resided at Care One for thirty-five days—a protracted stay satisfying the plain definition of an "extended" care period. Further, when Renee was admitted, there was no set deadline for her discharge. Indeed, there is no evidence in the record indicating had Renee not fractured her hip in April 2016, she would not have remained at Care One for an indefinite time. Cf. Ptaszynski, 440 N.J. Super. at 43 (suggesting, without definitively holding, the NHA might not apply to "a hospital-based facility like [the defendant], where persons are admitted for fewer than thirty days").

Nor are we persuaded by defendant's reprised argument Care One is not a nursing home for purposes of plaintiff's NHA claim because Renee was treated in a "subacute unit." A "subacute unit" is a particular type of unit defined and governed under the HCFPA. In particular, N.J.S.A. 26:2H-7.5 defines a

8 Extended, Merriam-Webster, https://www.merriamwebster .com/dictionary/extended (last visited Aug. 18, 2026).

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"subacute care unit" as "a unit located within a hospital which utilizes licensed long-term care beds to provide subacute care for patients."9 Similarly, the LTCF Licensure Standards define "subacute units" only in the context of "an acute care general hospital." N.J.A.C. 8:39-47.2. Nothing in the record indicates Care One is licensed as such.

Further, N.J.S.A. 26:2H-7.6 subjects hospitals proposing to establish subacute care units to certain requirements. Pertinent here, the statute provides the maximum length of a patient's stay in a subacute care unit "shall not exceed eight days."10 N.J.S.A. 26:2H-7.6(a)(2). Renee was a patient at Care One for more than one month. Thus, both Care One's license and the actual care it provided Renee did not conform to the statutes governing subacute care units.

We therefore discern no basis to disturb the motion judge's decision on summary judgment or the trial judge's decision submitting plaintiff's NHA claim

9 An earlier draft of N.J.S.A. 26:2H-7.5 discussed "subacute care units in health care facilities" and defined "health care facility" as "a hospital or a skilled nursing home." S. 368 (1996) (second reprint). The term "health care facility" was removed in the final enacted statute, further confirming the Legislature 's intent to restrict the establishment of subacute care units to acute care general hospitals and not nursing homes. Ibid. 10 An earlier draft of N.J.S.A. 26:2H-7.6 permitted an "average" length of stay not to exceed twenty days, the adoption of a maximum of eight days suggest the Legislature intended to closely limit the creation and utilization of subacute care units. S. 368 (1996) (second reprint).

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to the jury. We conclude, as did the motion and trial judges, there was no evidence in the record to suggest Care One was licensed and actually operated as anything other than a nursing home as defined under N.J.S.A. 30:13-2(c). Renee received "extended" care at the facility, qualifying her as a "resident" under N.J.S.A. 30:13-2(e) with all rights enumerated in N.J.S.A. 30:13-5.

B. Propriety of Plaintiff's NHA Claim & Jury Instructions To further support its argument the motion and trial judges erroneously failed to dismiss plaintiff's NHA claim, defendant argues plaintiff "did not allege or present any evidence" demonstrating "defendant infringed any actionable 'right' of a nursing home resident listed in N.J.S.A. 30:13-5" regarding Renee's care. Defendant maintains plaintiff's evidence "related solely to allegations of nursing negligence allegedly resulting in a fall and hip fracture," and plaintiff failed to "allege any separate harm or damages arising from the NHA rights claim."

As part of its contentions in its third point, defendant also claims the trial judge incorrectly instructed the jury it could consider "the same conduct" relating to Renee's hip fracture "for purposes of both the nursing negligence and NHA claims." Defendant asserts plaintiff's NHA claim essentially constituted an improper "negligence per se claim." Defendant again argues plaintiff

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impermissibly recovered damages related to Renee's fall by "recast[ing] the same allegations" in its negligence and NHA claims, thereby "circumvent[ing] the requirements of establishing the duty of care, breach of that standard and causation" using expert testimony. Defendant therefore argues the judge improperly awarded plaintiff counsel fees and costs.

1. The Motion Record and Pertinent Trial Evidence In his decision on summary judgment, the judge expressly found plaintiff's "malpractice claim [wa]s based, in large part, on failure to provide an appropriate wheelchair with restraints and/or appropriate nursing care," whereas the NHA "rights violation claim [wa]s based on other conduct, including humiliating [Renee] . . . by forcing her to urinate in her wheelchair, failing to answer her call bell, and forcing her to live in an environment that was unsafe. "

At trial, plaintiff played the video-recorded testimony of Dr. White, who testified, upon Renee's admission, Care One performed a fall risk assessment that considered her mental status, gait, balance, vision, previous falls, and other factors. Citing the evaluation, Dr. White testified Care One noted Renee had "poor recall judgment," "poor safety awareness," and did not "understand her own limits" regarding her ability to move around. Dr. White stated elderly people with a degree of dementia may forget, or not understand, they "really

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shouldn't be getting up and walking" and may "unknowingly take unnecessary risk[s]." Dr. White further testified Care One's records indicated Renee exhibited "balance problem[s] while standing," "decreased muscle coordination," and could only move from a seated to a standing position and "stabilize" with staff intervention and assistance. In her ensuing trial testimony, defendant's expert, Dr. Brangman, concurred with Dr. White's assessment of the limitations of dementia patients.

Noting Care One ultimately assessed Renee as a "high risk for falls," Dr.

White opined she needed "more supervision" than other patients. Dr. White testified Care One determined, as to Renee's "activities of daily living," two people were necessary to assist with bathing, dressing, bed mobility, and ambulation, and one person was required to assist with eating and toileting. Dr. White noted Care One provided Renee a wheelchair with an alarm and non-skid material under the chair's cushion, a walker, oxygen saturation socks, and side rails on her bed.

Renee's medical records admitted at trial indicated she was, at times, incontinent of bladder, bowel, or both. Renee's care plan indicated toileting was to occur every two hours while she was awake. However, Jack and Ilene

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testified they visited their mother daily and toileting did not occur according to the care plan.

Instead, Jack testified Renee said there were "many instances where she would ring her bell because she needed to go to the toilet, and there would be no response for a good fifteen to twenty minutes." Jack also testified he witnessed the same issue during visits: he "would ring the bell" and "get no responses," prompting him to "walk over . . . to the nurses' station" for assistance. In response, Jack was told by Care One staff, "We'll get to you." Ilene corroborated Jack's account, stating when she received no response, she personally took her mother to the bathroom. Jack testified he escalated this concern to an administrator, but the issue was not remedied. Dr. White testified failure to take a patient to the toilet when requested is "one of the number one reasons patients fall because they don't want to become incontinent." Patients therefore attempt "to get up and go to the bathroom" without assistance.

Ilene testified Renee told her multiple times she had fallen and sometimes had bruises Renee claimed were caused by the falls. According to Ilene, when Renee's family informed Care One staff of these claims, staff responded Renee was "confused" and denied anything happened. However, Renee's treatment

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records showed she had fallen on several occasions while at Care One, including March 29, 2016, April 2, 2016, and April 4, 2016.

At trial, Jack testified about a text message exchange he had with Ilene indicating Renee said, when no family member was present, "Willow," a Care One aide, yelled at Renee.

On April 6, 2016, the day before Renee was admitted to the hospital with a broken hip, Jack visited his mother with several other family members. When he left Care One around 9:00 p.m., Jack brought Renee to her room. Jack testified when he left, Renee did not seem confused. He reminded Renee to call for help if she needed it, not to get up by herself, and to "just be careful."

Care One records referenced by Jack and Resnick at trial indicated, at some point before 9:30 p.m., a nurse entered Renee's room and observed she was "agitated" and experiencing increased confusion. In a report created later, a nurse characterized Renee's mental state as "normal and confused." Because the nurse was concerned Renee would overestimate her abilities and attempt to stand and walk without assistance, Renee was placed by the nurse's station in her wheelchair, as had been done on prior occasions.

According to Care One records, around 9:45 p.m., a nurse heard Renee's chair sensor alarm sound and found her lying on the floor on her left side. Based

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on the account set forth in documents entered into evidence, it appeared the fall itself was unwitnessed. Dr. White, Dr. Brangman, and Resnick confirmed, according to the documents they received in preparation for their expert reports and testimony, Renee was last observed sitting by the nursing station at 9:30 p.m., and there was no information available to establish how long the alarm sounded before she was found. At trial, there was some dispute about exactly where Renee was found—close to her wheelchair, or several feet away. A treatment note in the record indicated, at the time of Renee's fall, the desk nurse was standing outside Room 301, across from, not at, the nurses' station.

After Renee fell, staff telephoned a doctor, who advised how to check Renee's extremities and temperature. The nurse determined Renee was "fine" and returned her to bed, where staff would "continue to monitor." Renee was administered acetaminophen in response to her complaint that her "head and body hurt[]."

Ilene testified, the following day, around 8:00 a.m., she visited Renee at Care One and found her sitting in a wheelchair near the elevators where she was often placed before Ilene's visits. Ilene said her mother was "hunched over" and looked "horrible," with a flushed, frowning, closed-eyed expression. Upset because her mother "looked sick," Ilene "yelled" for assistance and asked her

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mother what had happened. Renee told Ilene she had fallen the night before and was in pain, but did not state where or when the fall occurred. Ilene further testified the responding nurse acknowledged Renee had fallen, but had not witnessed the fall. Sometime later, Renee indicated the pain was in "her groin area on the left side." Ilene testified another nurse said Renee "was walking . . . behind the nurses' station near her room" when she fell.

Ilene testified she immediately told Care One staff Renee required hospitalization. According to Ilene, however, the administration responded by stating there would be a "meeting" when Jack arrived. Ilene testified, during the meeting, Care One insisted the family discuss possible preventative measures for any future falls.

Jack testified when he arrived, his mother "looked extremely in so much pain," with a flushed face and closed eyes. According to the incident report provided to Jack, Renee fell "in the hallway." Jack further testified family members requested an ambulance between 8:30 and 9:00 a.m., but an ambulance was not provided until "maybe, 1:30 to 2:00 in the afternoon." A Care One record presented at trial confirmed a staff doctor "was made aware" of the family's request but "d[id] not believe that evaluation [was] necessary." The doctor advised the transfer could be provided "if [the] family [wa]s insisting."

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A treatment note added to Renee's chart at around noon on April 7, indicated a staff member saw Renee "trying to bend down and . . . pick up something" earlier that day. This staff member reinstructed Renee not to bend down while seated in her wheelchair. In a treatment note added to Renee's chart on April 8, a nurse indicated Renee "slept well throughout the night" on April 6, but "complained of moderate pain in the right groin area" at some point. According to this note, Renee denied she was in pain at her 6:00 a.m. medication time the next morning.

At the hospital, Dr. Scherl diagnosed Renee with a displaced left femoral neck fracture and performed a left hip uncemented bipolar hemiarthroplasty to repair the fracture in her hip by inserting prosthetic hardware into her joint. Dr. Scherl opined the cause of Renee's hip fracture was the "[f]all onto her left side" suffered on April 6. Dr. Scherl testified it was not "a reasonable story" that this type of fracture could have occurred because Renee simply "bent over." Although a pathologic fracture such as a hole, tumor, or cyst, could cause a hip fracture, Dr. Scherl apparently did not note any of those conditions when operating.

By contrast, defense expert, Dr. Schenk, concluded Renee's fall on April 6, 2016, did not cause her hip fracture. He opined, on April 7, Renee suffered

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an "insufficiency fracture" from her osteoporosis. Dr. Schenk testified had Renee broken her hip on April 6, she would have been "screaming in pain" when transferred from her wheelchair to her bed and would not have been able to sleep through the night or eat as stated in her treatment note.

2. Jury Instructions

In his final charge to the jury, the trial judge's instructions on plaintiff's NHA violation claim largely tracked the model jury charge. See Model Jury Charges (Civil), 5.77, "Violations of Nursing Home Statutes or Regulations— Negligence and Violations of Nursing Home Residents' Rights Claims" (rev. Nov. 2023). Accordingly, the judge instructed:

In this case, aside from asserting that [Care One]

violated . . . plaintiff's nursing home resident rights, . . . plaintiff claims that [Care One was] also negligent.

In support of . . . plaintiff's claims of negligence, it has asserted that [Care One] also violated the nursing home statute. [P]laintiff alleges [Care One] violated a statute including the [NHA], which set up standards of conduct for nursing homes in our state.

If you find that [Care One] violated any of the standards of conduct, any such violation or violations is evidence to be considered by you in determining whether negligence, as I've defined that term to you, has been established. You may find that such violation or violations constituted negligence on the part of [Care One] or you may find that they did not constitute such negligence.

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Now in this case, aside from asserting that [Care One] w[as] negligent . . . plaintiff[] claims that [Care One] violated the rights of [Renee] as a nursing home resident under the rights enumerated in the [NHA].

Specifically, . . . plaintiff asserts that [Care One]

has violated [Renee]'s rights as a nursing home resident as follows. [P]laintiff asserts that [Care One] has violated N.J.S.A. 30:13-5(j), which states: Every resident of a nursing home shall have the right to a safe and decent living environment, and considerate and respectful care that recognizes the dignity and individuality of the resident. . . .

If you find that [Care One] violated any of these rights, you have found a violation of the [NHA] -- any violation of . . . plaintiff's nursing home residents'

rights. . . .

Turning to plaintiff's burden of proving damages under its NHA claim, the judge continued:

[P]laintiff has brought claims for damages under both violations of [the NHA] and negligence. You are not to duplicate damages, which means that you may not compensate plaintiff twice for the same injuries in the event you find in plaintiff's favor on both negligence and [the NHA].

If you find that . . . plaintiff has sustained separate and independent injuries, losses, and/or harms for the negligence and [NHA violation], you may award separate damage awards. However, if you find that plaintiff did not sustain separate injuries or damages, then you may compensate plaintiff once and only once.

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Later referencing a note on the verdict sheet, the trial judge reiterated: "you may not compensate plaintiff twice for the same injuries in the event you find in plaintiff's favor on one or both of the negligence claims and the nursing home resident's rights claims."

3. Defendant's Contentions Initially, defendant correctly argues the language contained in N.J.S.A.

30:13-5(j) does not support a negligence per se claim, as it does not plainly prohibit negligent conduct, but rather requires "a safe and decent living environment and considerate and respectful care." See Labega v. Joshi, 470 N.J. Super. 472, 489-90 (App. Div. 2022) (holding the defendant's alleged violation of hospital policies could not support a negligence per se claim because the policies were not statutes and did not reference applicable standards of care in the manner required to establish negligent conduct).

Here, however, plaintiff did not assert defendant's alleged violation of the NHA constituted "negligence in itself" and Care One breached the relevant standard of care. Nor did the trial judge instruct the jury to so find. Rather, the judge explained, if the jury found "[Care One] violated any of the standards of conduct" under the NHA, then the jury could consider "any such violation or violations" as evidence "in determining whether negligence" was "established."

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See Badalamenti v. Simpkiss, 422 N.J. Super. 86, 102 (App. Div. 2011) (recognizing a jury may sometimes consider a statutory violation "in determining issues of negligence or contributory negligence," but reiterating "the overriding principle that the statutory violation, to be evidential, must be causally related to the happening of the [incident]" (quoting Mattero v. Silverman, 71 N.J. Super. 1, 9 (App. Div. 1961))). Because plaintiff alleged Care One violated the NHA and/or was negligent, but did not claim proof of an NHA violation constituted proof of negligence, we reject defendant's contention that plaintiff's NHA action constituted an impermissible "negligence per se" claim.

Defendant also argues plaintiff inappropriately "recast" its negligence claim as an NHA claim by proffering the same evidence to prove both counts and, by extension, impermissibly invoking the Act to recover damages for Renee's hip injury when the jury determined plaintiff failed to prove the injury resulted from negligence. We are unpersuaded.

Generally, our Supreme Court has long recognized a plaintiff may pursue multiple causes of action against the same defendant regarding the same potential damages. See Howard v. Univ. of Med. & Dentistry, 172 N.J. 537, 545 (2002) (recognizing "a patient has several avenues of relief against a

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doctor," such as negligence, lack of informed consent, and battery, which may be "based on different theoretical underpinnings," but nonetheless involve the same alleged harm); see also Millison v. E. I. Du Pont de Nemours & Co., 101 N.J. 161, 186-88 (1985) (holding disabled workers could bring both statutory workers' compensation claims and a common-law suit for intentional wrongdoing against their employer).

As to plaintiff's causes of action in the present matter, defendant's reliance on our decision in Ptaszynski is misplaced. Defendant asserts, in Ptaszynski, we determined the plaintiff made "redundant allegations" when alleging both negligence and a violation of N.J.S.A. 30:13-5(j), and therefore the plaintiff failed to assert an actionable claim under the NHA. However, we made no such determination.

In Ptaszynski, 440 N.J. Super. at 32, the jury separately awarded the plaintiff $250,000 on her negligence claim and $250,000 for the NHA violation. Concluding the jury "could not award [the] plaintiff damages for [the] defendant's violations of the NHA and its negligence based upon the same injuries or harm to [the plaintiff,]" we reversed the verdicts and damages awards on both claims. Id. at 40. Relevant here, we explained, "If properly instructed, the jury could have allocated the damages to the separate claims, based on the

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different theories of liability being asserted." Ibid. Because "the jury was not provided with those instructions," we declined to "assume that the jury allocated its damage awards based on the different theories of recovery" advanced at trial. Ibid.

Conversely, in the present matter, the trial judge expressly instructed the jury—consistent with the model jury charge—it was not to compensate plaintiff twice for the same injuries. "Although model jury charges are 'not binding authority,'" State v. Keogh, 481 N.J. Super. 67, 79-80 (App. Div. 2025) (quoting State v. Bryant, 419 N.J. Super. 15, 28 (App. Div. 2011)), we are persuaded the model jury charge, followed by the judge in this case, adequately addressed our concerns in Ptaszynski.11 "We presume the jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409 (2012); see also Dutton v. Rando, 458 N.J. Super. 213, 233 (App. Div. 2019). "Indeed, '[o]ne of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions.'" Hrymoc v. Ethicon, Inc., 467 N.J. Super. 42, 79 (App. Div. 2021), aff'd as modified, 254 N.J. 446 (2023) (quoting State v. Burns, 192

11 In the section on damages, the model jury charge contains a "NOTE TO JUDGE," expressly citing our decision in Ptaszynski, 440 N.J. Super. at 40. Model Jury Charges (Civil), 5.77(C), note.

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N.J. 312, 335 (2007)). The damages award here reflects the jury heeded the judge's charge.

Further, defendant contends a nursing home resident may institute a lawsuit against a facility alleging inadequate care only under a medical or nursing negligence theory. More particularly, defendant apparently claims plaintiff could not allege a violation of N.J.S.A. 30:13-5(j) with evidence regarding Renee's fall and the jury wrongly awarded considerable monetary damages associated with that incident without finding defendant breached its standard of care under the rigorous negligence standard. At the same time, defendant argues plaintiff could not support its claim with evidence of Care One's other improper conduct, such as failures to answer Renee's call bell or yelling at her, because that conduct was "not linked to any harm" which would cause monetary damages.

Defendant's argument runs counter to the express terms of the NHA. To hold otherwise, would deprive Renee, and other similarly situated nursing home patients, redress for any violation of N.J.S.A. 30:13-5(j), rendering that provision nugatory. Statutory language should not be construed in a way that will make any part of the enactment "superfluous." State in the Int. of K.O., 217 N.J. 83, 91 (2014). Defendant's argument also is at odds with the Legislature's

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intent in passing the NHA. See Burns, 468 N.J. Super. at 313 (recognizing in enacting the NHA, the Legislature found "the well-being of nursing home residents' in this State required 'a delineation of nursing homes and a declaration of a bill of rights for such residents.'" (quoting N.J.S.A. 30:13-1)).

Lastly, we are satisfied the jury's verdict on plaintiff's NHA claim was supported by sufficient trial evidence. Although the jury found Care One's nursing staff was not negligent in its care and treatment of Renee related to her April 6, 2016 fall, there was ample evidence in the record that Care One did not provide "a safe and decent living environment and considerate and respectful care" under N.J.S.A. 30:13-5(j) on April 6 and other occasions.

Renee's April 6, 2016 fall was only one piece of the puzzle. As the trial judge found when denying defendant's motion for judgment notwithstanding the verdict, plaintiff presented evidence painting a full picture of inadequate care . That evidence included Care One staff: (1) failed to timely inform Renee's family of her falls and evaded their concerns when Renee reported falling; (2) failed to conduct adequate checks that would have revealed Renee's hip fracture sooner; (3) left Renee with a serious fracture overnight until Ilene discovered her in intense pain the following morning; (4) denied Renee needed any further evaluation; (5) delayed summoning an ambulance to transport Renee to the

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hospital; (6) yelled at Renee; (7) repeatedly failed to respond to Renee's and her family's call bells; (8) failed to toilet Renee in accordance with her care plan; and (9) left Renee in her wheelchair without supervision despite her previous attempts to walk unaided.

Viewed in the entirety, the trial evidence supports the jury's verdict that defendant violated N.J.S.A. 30:13-5(j) and its damages award. We therefore conclude plaintiff's NHA violation claim was properly submitted to the jury and the trial judge correctly instructed the jurors they could consider evidence concerning Renee's April 6 fall when separately evaluating plaintiff's negligence and NHA claims.

C. Constitutionality of N.J.S.A. 30:13-5(j)

As it did before the motion judge, defendant argues N.J.S.A. 30:13-5(j) is void as unconstitutionally vague. The judge rejected defendant's contention finding defendant failed to support its argument with controlling authority. Citing, as one example, our decision in Ptaszynski, the judge found "numerous courts have interpreted and applied [N.J.S.A. 30:13-5(j)] for decades."

Before us, defendant asserts the statute is facially vague because the phrase, "right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident ," is

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insufficiently specific or illustrative to permit care providers to "mold [their] conduct in order to refrain from engaging in activity that the statute proscribes ." Defendant suggests the "interpretation and application of the terms will vary significantly from person to person," with some patients finding certain actions by a provider "undignified" even though the actions may be medically necessary and thus in compliance with "the standard of care." Defendant also argues the statute is vague as applied to its own alleged conduct in this case.

As a threshold matter, the record contains no evidence defendant provided notice to the Attorney General of its challenge to the validity of the statute. See Rule 4:28-4(a) (mandating the party challenging the validity of a statute "give notice of the pendency of the action to the Attorney General" when the State is not a party to the action). Because defendant failed to duly notice the Attorney General of its intention to challenge the constitutionality of N.J.S.A. 30:13-5(j), we decline to consider its contentions on this appeal.

II. Impeachment of Dr. White Defendant next argues the trial judge erroneously granted plaintiff's in limine motion to redact portions of Dr. White's testimony referencing Care One records and barring their use at trial. Defendant maintains the documents no

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longer were privileged following the Court's decision in Keyworth. We are unpersuaded.

During direct examination at her deposition, Dr. White testified, in pertinent part, Renee was not "able to move fast," noting she needed two people to assist while standing and walking. Dr. White explained, "according to documentation, [Renee] wasn't really ambulating much at all," and "wasn't somebody that was going to be agile and jump right up."

Relevant here, Dr. White further testified Care One "failed to provide close supervision at the nurses' station, and . . . recognize that [Renee] had a fracture." Dr. White opined Renee was not "getting the appropriate level of supervision because this wasn't a woman that was going to be able to move fast," and that when her chair alarm started to go off "[s]taff should have been able to get to her in time" to prevent her from falling.

While cross-examining Dr. White about Renee's April 6 fall, defense counsel referenced three Care One records: (1) a fall investigation review written by Nurse Maxine Burns, dated April 6, 2016; (2) a physical therapy note written by Mario P. Surio, Jr., dated April 8, 2016; and (3) an occupational therapy note written by Hazel Doland, dated April 7, 2016. Burns's fall

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investigation review record was subject to the protective order and the motion judge's ruling the prior day.

In the first document, Burns stated she "received [a] call from the desk nurse that while [Renee] was sitting in her [wheelchair] in front of [the] nursing station, she just suddenly stood up [and] attempted to walk then fell on [the] floor." In the second document, Surio wrote: "As per [nursing] report, on 4/6/16, [the] desk nurse called the Nurse Supervisor [and] report[ed] that [Renee] had a fall incident. [Renee] was sitting in her [wheelchair] in front of the Nurses' Station, suddenly stood up and attempted to walk, then fell on the floor." In the third document, Doland reiterated, "as per nursing report, on 4/6/16[,] the desk nurse called the nursing supervisor to report that while [Renee] was sitting in her wheelchair in front of [the] nursing station, she just suddenly stood up and attempted to walk, then fell on [the] floor."

Plaintiff's counsel objected on hearsay grounds. Defense counsel countered Dr. White opened the door by opining Renee could not move quickly. He argued plaintiff should not be permitted to "create an alternate reality that says there's no 'suddenly'" when there were documents stating Renee "suddenly stood up." In her testimony that followed, Dr. White confirmed she had not read

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the documents and thus did not consider them when authoring her expert reports or while testifying.

Prior to trial, plaintiff's counsel identified ten excerpts from Dr. White's deposition for redaction. Those excerpts included all references to, and quotations from, the hearsay statements contained within the three Care One records referenced by defense counsel during cross-examination of Dr. White. Defense counsel countered the three Care One records were fodder for impeachment purposes, particularly in light of the term, "suddenly," in the records. Agreeing with plaintiff's counsel, the judge ordered redaction of the records.

A trial court's evidentiary ruling is reviewed "with substantial deference,"

and must not be overturned "unless it constituted a clear abuse of discretion." Hrymoc v. Ethicon, Inc., 254 N.J. 446, 463 (2023). Because trial judges enjoy "broad discretion" in making evidence-related decisions, State v. Harris, 209 N.J. 431, 439 (2012) (quoting State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div. 2003)), their evidentiary rulings "are subject to limited appellate scrutiny," State v. Buda, 195 N.J. 278, 294 (2008). Thus, a reviewing court "will reverse an evidentiary ruling only if it 'was so wide off the mark that a manifest

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denial of justice resulted.'" Griffin v. City of East Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

Seminal principles guide our review. "Out-of-court statements offered to prove the truth of the matter asserted are hearsay." State v. White, 158 N.J. 230, 238 (1999) (citing N.J.R.E. 801). Under N.J.R.E. 802, hearsay is inadmissible at trial except as otherwise expressly provided. "This general prohibition, subject to various exceptions, reflects that hearsay is presumptively deemed to be 'untrustworthy and unreliable.'" James v. Ruiz, 440 N.J. Super. 45, 59 (App. Div. 2015) (quoting One Step Up v. Sam Logistic, 419 N.J. Super. 500, 507 (App. Div. 2011)). Accordingly, "unless a specific hearsay exception recognizing the trustworthiness of some otherwise inadmissible out-of-court statement applies," a hearsay statement may not be admitted in a judicial proceeding. Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 316 (2006). Exceptions to this general principle "have been made on the basis that 'the circumstances under which the statements were made provide strong indicia of reliability.'" State v. Nevius, 426 N.J. Super. 379, 393 (App. Div. 2012) (quoting State v. Phelps, 96 N.J. 500, 508 (1984)).

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Defendant argues the three Care One records at issue were admissible under N.J.R.E. 803(c)(6), providing an exception to the hearsay rule for a business record, which is defined as:

[a] statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make such writing or other record.

This exception does not apply if the sources or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

Generally, N.J.S.A. 803(c)(6) "routinely permits the admission of medical records." Konop v. Rosen, 425 N.J. Super. 391, 403 (App. Div. 2012). But this general principle is not without limitations. For a record to qualify under the business record exception, the proponent must demonstrate the writing was "made in the regular course of business," "prepared within a short time of the act, condition or event being described," and "the source of the information and the method and circumstances of [its] preparation . . . justify allowing it into evidence." State v. Sweet, 195 N.J. 357, 370 (2008) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).

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Here, defendant did not present any evidence to the trial court establishing a foundation for the three Care One records, either by testimony or sworn statements. See Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 15 (App. Div. 1996). However, "[t]he authentication rule 'does not require absolute certainty or conclusive proof.'" State v. Brown, 463 N.J. Super. 33, 51-52 (App. Div. 2020) (quoting State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999)). The reports were medical records created by Care One employees, within two days of Renee's fall, concerning the circumstances of the incident. Arguably, therefore, the records constituted business records containing non-expert "routine" medical information and were admissible under N.J.R.E. 803(c)(6). But that does not end our inquiry.

We turn to the notations contained in the three Care One records, recognizing, as defendant argues, each notation "w[as] a factual statement, not an opinion or complex diagnosis of a medical condition subject to exclusion under N.J.R.E. 808."12 Konop, 425 N.J. Super. at 405. However, the notations indicating Renee "suddenly" stood clearly were hearsay as the source of the information was a non-testifying, unknown declarant. In each document, the

12 N.J.R.E. 808 generally excludes an expert opinion "included in an admissible hearsay statement" when the declarant does not testify.

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declarant stated he or she received information from someone else: Burns said she "received [a] call from the desk nurse," who described Rene's fall; Surio wrote "as per [a nursing] report," the desk nurse "called the Nurse Supervisor and reported" about the fall; and Doland disclosed a "nursing report" said "the desk nurse called the nursing supervisor" about the incident. Clearly, the creators of the Care One records had no personal knowledge of the information contained therein and the unidentified desk nurse's statements do not themselves fall under any hearsay exception. See Konop, 425 N.J. Super. at 405-06.

Contrary to defendant's assertion, our decision in Konop does not compel a different result. In Konop, 425 N.J. Super. at 397, the plaintiff's expert, Dr. Meyer N. Solny, opined the defendant doctor deviated from accepted medical standards by failing to stop a colonoscopy "when excessive patient movement occurred." Dr. Solny based his opinion "exclusively upon a notation that appeared in a consultation report prepared by" another physician, Dr. Victor S. Flores, upon the plaintiff's admission to the hospital. Ibid. Dr. Flores, in turn, "acknowledged that the consultation report was based upon what others told him." Id. at 405-06. At trial, the plaintiff sought to "offer the notation 'to prove the truth of the matter asserted,' i.e., that [she] was moving too much during the colonoscopy." Id. at 406 (quoting N.J.R.E. 801(c)). We framed the issue as

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"the admissibility of a hearsay statement"—Dr. Flores's notation about the plaintiff's movement—"contained within a document that was itself hearsay— the consultation report." Id. at 402.

We recognized the consultation report itself was a business record admissible under N.J.R.E. 803(c)(6) because it was created by Dr. Flores as part of his routine duties at the hospital near the time of the plaintiff's admission to the emergency room and its authenticity was not contested. Id. at 403-04. However, we concluded the notation within the report was "clearly hearsay," and did not fall under other exceptions to the exclusionary rule the plaintiff asserted, because Dr. Flores "was not present when the colonoscopy was performed and had no direct knowledge whether [the] plaintiff was 'moving too much' during the procedure." Id. at 406.

We also rejected the plaintiff's argument that the notation was admissible under N.J.R.E. 703 because it formed the basis of Dr. Solny's opinion. Id. at 406-07. We held the plaintiff could not allow Dr. Solny to act as a vehicle for the introduction of otherwise inadmissible hearsay as "substantive evidence" that the plaintiff was "moving excessively during the colonoscopy" and, as such, the defendant was negligent. Id. at 407. Ultimately, we remanded the matter to the trial judge for a new trial, with the instruction that the disputed notation

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could only be admitted if it was established by a preponderance of the evidence that the defendant doctor herself told Dr. Flores about the plaintiff's behavior, which would render the notation admissible under N.J.R.E. 803(b)(1). 13 Id. at 421-22.

Unlike the notation in Konop, no potential exception to the hearsay rule applies in the present matter. The hearsay statements contained in the three Care One records were made by a nurse, who did not testify and was not identified in the record, thus calling into question their reliability and trustworthiness. See James, 440 N.J. Super. at 59. Further, Dr. White did not review the documents prior to rendering her report or trial testimony, which may have otherwise rendered the reports admissible under N.J.R.E. 703. See Agha v. Feiner, 198 N.J. 50, 62 (2009) (citing N.J.R.E. 703) (observing "the testifying expert is generally permitted to detail for the trier of fact all of the materials, including . . . hospital records . . . on which [the expert] relied in deriving his [or her] opinion").

We also reject defendant's argument plaintiff "opened the door" to the documents' use on cross-examination by eliciting testimony from Dr. White that

13 N.J.R.E. 803(b)(1) excludes from the hearsay rule a party-opponent's statement.

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Renee could not stand quickly. Defendant renews its contention that during Dr. White's deposition, "plaintiff introduced a false narrative" suggesting Renee was left unattended at the nurses' station and "got up and walked a distance away from her wheelchair into the hallway, where she fell and was not discovered until sometime later." Defendant also accuses plaintiff's counsel of "reiterat[ing] the false narrative" during his opening statement "as the core of plaintiff's theory of the case at trial." Defendant therefore claims it should have been permitted to impeach Dr. White's testimony with the three Care One records.

"The doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." State v. James, 144 N.J. 538, 554 (1996). "Similar to the 'completeness' doctrine, the 'open door' doctrine provides an adverse party the opportunity to place evidence into its proper context." Alves v. Rosenberg, 400 N.J. Super. 553, 564 (App. Div. 2008) (quoting James, 144 N.J. at 554). Nonetheless, "it is generally improper to cross-examine an expert about inadmissible hearsay documents upon which the expert has not relied in forming his [or her] opinion." Villanueva v. Zimmer, 431 N.J. Super. 301, 320 (App.

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Div. 2013); Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117, 130 (App. Div. 1998).

In the present matter, Dr. White stated multiple times she did not rely on the three Care One records in reaching her conclusions, and when she learned of their contents, disagreed Renee "could suddenly stand up." We therefore conclude the trial judge properly ordered redaction of defense counsel's cross- examination on the contents of the three Care One records. To rule otherwise would have permitted defense counsel to question Dr. White about documents, which did not form her opinion.

Along the same lines, we reject defendant's assertion the records were presented solely for impeachment purposes and not for their truth. The primary objective in questioning Dr. White about the records was to convince the jury of the veracity of their contents, that is, Renee could and did stand "suddenly," thus Dr. White's testimony Renee could not do so was incorrect and not credible.

We also reject defendant's contention the records withheld from plaintiff pursuant to the protective order no longer were privileged following the Supreme Court's decision in Keyworth, 258 N.J. at 381-86, and as such, were available for use at trial. Even if defendant could and should have provided the

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documents to plaintiff during discovery, the statements in those documents constituted inadmissible hearsay under N.J.R.E. 802.

Nor are we persuaded by defendant's contention on reply that the records were fair game for cross-examination because Jack and Ilene "were allowed to give their own hearsay accounts of how their mother's fall occurred at trial." Notably, defendant did not object to the siblings' statements on this issue at trial.

In summary, we conclude the trial judge did not abuse his discretion by barring the introduction of the three Care One records at trial and ordering the redaction of those portions of Dr. White's de bene esse deposition discussing the documents. Although the documents could be considered business records under N.J.R.E. 803(c)(6), the statements contained therein constituted hearsay and references thereto were not permissible on cross-examination of Dr. White, particularly because she did not rely on them when reaching her conclusions.

III.

In its final point, defendant briefly argues the trial judge erred by failing to issue a Scafidi instruction regarding plaintiff's NHA claim and restricting the Scafidi instruction to Renee's osteoporosis on plaintiff's negligence claim. 14 In

14 Because defendant prevailed on its negligence claim, we decline to consider its argument. See Redd v. Bowman, 223 N.J. 87, 104 (2015) ("An issue is 'moot

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the alternative, defendant contends the verdict was excessive. Defendant's terse assertions require limited comment.

A. Scafidi Instruction

"In Scafidi, 119 N.J. at 93, the Court fully analyzed the relationship between a pre-existing condition and proximate causation in increased-risk medical malpractice cases." Reynolds v. Gonzalez, 172 N.J. 266, 282 (2002). The Scafidi Court held: "Evidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result." 119 N.J. at 108 (citing Evers v. Dollinger, 95 N.J. 399, 417 (1984)).

When presented with a Scafidi charge, a jury must undertake a two-prong analysis. Initially, "the evidence must permit a jury to find that defendant was negligent and that defendant's negligence increased plaintiff's risk of harm from an established preexistent condition." Anderson v. Picciotti, 144 N.J. 195, 206

when [a judicial] decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" (quoting Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App. Div. 2011))). We note only defendant does not expound upon its contention that the judge erroneously limited the Scafidi instruction to Renee's osteoporosis on plaintiff's negligence claim.

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(1996). If the first prong is satisfied, it is established that "there are concurrent causes of the harm to the plaintiff." Ibid. The jury must then apply the "substantial factor" standard of causation—not the typical "but for" causation test. Id. at 206-07.

To support its Scafidi argument, defendant cites only the Court's eponymous case and the applicable model jury charge pertaining to medical negligence actions. See Model Jury Charges (Civil), 5.50E, "Pre-Existing Condition—Increased Risk/Loss of Chance—Proximate Cause," at 1 (rev. Mar. 2021). Defendant does not cite, and our independent research has not revealed, any authority addressing the application of a Scafidi instruction to an NHA violation claim. In his written decision denying defendant's motion for a new trial, the judge similarly noted "Scafidi has not been applied outside the context of physician malpractice or general negligence."

Stating the NHA "is a form of remedial social legislation designed to protect vulnerable elderly residents in nursing homes," the trial judge elaborated:

Reading Scafidi into the [NHA] [v]iolation [c]laim would invert its intended protections, asking a jury to speculate to what extent [Renee]'s age-related osteoporosis "increased her risk" of a violation of her resident rights. This reasoning does not align with her

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needs or the nursing home's duty to provide a safe living environment and dignified care.

Nonetheless, the judge found:

[E]ven if Scafidi were theoretically applicable to nursing home resident rights, [p]laintiff has satisfied a higher burden of causation than that required under Scafidi. Scafidi and its precursor, Evers . . . reduced the burden of proof for proximate causation in cases where quantifying the increased risk of harm was difficult due to the inherent nature of the medical condition.

The judge concluded plaintiff did not contend Care One aggravated Renee's osteoporosis, but rather Care One "caused . . . whole new and separate injuries."

In view of the lack of binding precedent requiring issuance of a Scafidi charge on plaintiff's NHA violation claim, we discern no error in the trial judge's refusal to do so. Plaintiff's NHA claim was grounded in Care One's failure to provide Renee "a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident " under N.J.S.A. 30:13-5(j). The evidence adduced at trial established Renee suffered falls leading to and including the April 6, 2016 incident, and Care One staff left her without proper supervision on multiple occasions. The evidence supported a finding staff also failed to toilet Renee pursuant to her care plan, did not respond timely to calls for assistance, and in the case of one aide, yelled at

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her. These allegations were separate and apart from the medical treatment Renee received at Care One and, as such, a Scafidi causation and damages apportionment instruction was not appropriate.

We therefore conclude the trial judge did not err in declining to issue a Scafidi instruction on proximate cause as to plaintiff's NHA claim.

B. Remittitur

Lastly, defendant argues the verdict was excessive. Again, we are not persuaded.

Well-settled principles guide our review. "[I]n the unusual case where a damages award was grossly excessive or grossly inadequate," the court is empowered "to grant a new trial or offer the parties a remittitur or an additur." Orientale v. Jennings, 239 N.J. 569, 593 (2019). However, "unless both parties consent to a remittitur or an additur, the court must grant a new trial." Ibid.

We will not reverse a trial court's decision to deny a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law. " R. 2:10-1. That inquiry requires employing a standard of review substantially similar to that used at the trial level, except the appellate court must afford "'due deference' to the trial court's 'feel of the case,' with regard to the assessment of

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intangibles, such as witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).

Because juries have broad latitude to determine damages, "the standard for granting a new trial or remittitur is necessarily high." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). "A trial court should not order a new trial or remit a jury's damages award unless it is so clearly disproportionate to the injury and its sequela . . . that it may be said to shock the judicial conscience." Ibid. A court "must be 'clearly and convincingly' persuaded that it would be manifestly unjust to sustain the award." Ibid. (citing R. 4:49-1(a)).

In his well-reasoned written decision, the trial judge thoroughly addressed the governing law on remittitur, recognizing his task was to view the evidence adduced at trial "in the light most favorable to the plaintiff." Cuevas v. Wentworth Grp., 226 N.J. 480, 501 (2016) (quoting Johnson, 192 N.J. at 281). Quoting our Supreme Court's decision in Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), the judge further noted his analysis did not turn on whether he "would have reached an opposite conclusion."

Summarizing the trial evidence, the judge was convinced the damages award was not excessive. According to the judge:

Defendant minimizes Renee Sahar's injuries in extent, duration, and its sequela. [Renee] suffered a fractured

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hip and a myriad of other injuries . . . , not to mention the consequences of those injuries. The evidence also showed the pain from the hip fracture persisted throughout the remainder of [Renee]'s life. This pain in her left hip did not exist prior to her fall on April 6, at Care One. . . .

Even excluding the hip fracture, the jury had an ample basis to draw the conclusion that [Renee]

suffered significantly at Care One warranting the jury verdict given. The jury's "common judgment and experience" allowed for "a valid judgment" about whether plaintiff experienced mental suffering and anguish.

Having considered the trial judge's decision in view of the guiding legal principles and our deferential standard of review, we discern no basis to disturb the damages award and order a new trial. Based on the evidence adduced at trial, we conclude this was not "the unusual case where a damages award was grossly excessive." See Orientale, 239 N.J. at 593.

***

To the extent not addressed, defendant's remaining contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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