                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0245-12T3



MARTHA C. PTASZYNSKI,                      APPROVED FOR PUBLICATION
individually, and as
executor of the ESTATE                          March 20, 2015
OF REGINA PTASZYNSKI,                        APPELLATE DIVISION
deceased,

     Plaintiff-Respondent,

v.

ATLANTIC HEALTH SYSTEMS,
INC., d/b/a MT. KEMBLE
REHABILITATION AT MORRISTOWN
MEMORIAL HOSPITAL,

     Defendant-Appellant.

______________________________________

         Argued November 18, 2014 – Decided March 20, 2015

         Before   Judges       Yannotti,      Fasciale      and
         Whipple.

         On appeal from Superior Court of New Jersey,
         Law Division, Middlesex County, Docket No.
         L-7968-07.

         Anthony Cocca argued the cause for appellant
         (Bubb, Grogan & Cocca, L.L.P., attorneys;
         Mr. Cocca and Michael S. Bubb, of counsel;
         Katelyn E. Cutinello, on the brief).

         Barry R. Sugarman argued the cause for
         respondent (Sugarman Law, L.L.C., attorneys;
         Mr. Sugarman, of counsel and on the brief).
    The opinion of the court was delivered by

YANNOTTI, P.J.A.D.

    Defendant        appeals    from   a     judgment    entered      by    the    Law

Division awarding plaintiff damages, prejudgment interest, and

attorney's    fees    and   costs,     on    claims    arising   from      the    care

provided to Regina Ptaszynski ("Mrs. Ptaszynski") at Mt. Kemble

Rehabilitation       at   Morristown        Memorial    Hospital      ("MKR").      We

reverse and remand the matter to the trial court for further

proceedings.

                                        I.

    This matter arises from the following facts. On June 13,

2006, following a fall at her home, Mrs. Ptaszynski was admitted

to St. Peter's Hospital ("St. Peter's") with a fractured left

hip and left elbow. She was eighty-six years old at the time.

Prior to her fall, Mrs. Ptaszynski had been suffering from heart

disease,     high-blood        pressure,      an   abnormal      heart      rhythm,

diabetes, hypothyroidism, and peripheral vascular disease, which

is a disease of the arterial blood vessels.                Mrs. Ptaszynski had

triple-bypass surgery in 1998, and she suffered a stroke in 2000

that left her weakened on her left side.

    While at St. Peter's, Mrs. Ptaszynski suffered a severe

heart attack which delayed the surgery required to repair her

fractured    left    hip.   Mrs.   Ptaszynski      remained      at   St.   Peter's




                                        2                                   A-0245-12T3
until    June    24,    2006,     when    she    was    transferred    to     MKR.    Mrs.

Ptaszynski developed pressure sores and a fever at MKR, and on

July    19,     2006,     she    was     transferred        to   Morristown    Memorial

Hospital ("MMH"), where the doctors discovered that one of her

toes     was    infected        with    methicillin-resistant          staphylococcus

aureus      ("MRSA"),       a    bacteria        that       is   resistant     to     most

antibiotics.

       At   MMH,    the    doctors       treated    Mrs.     Ptaszynski's     infection

with antibiotics, but on July 30, 2006, her infected toe was

amputated. Apparently, Mrs. Ptaszynski's condition worsened. On

August 2, 2006, she was placed on a ventilator; however, in

accordance with Mrs. Ptaszynski's advance directives, her family

members elected to discontinue life support. She died the next

day.

       On September 18, 2007, plaintiff, who is Mrs. Ptaszynski's

daughter and the executrix of her estate, filed a four-count

complaint in the Law Division against defendant. In count one,

plaintiff alleged that defendant was negligent in the care that

it provided to Mrs. Ptaszynski. Defendant's negligence allegedly

included the failure to comply with New Jersey's statutes and

regulations        relating      to    the   care      of   nursing-home     residents;

comply with federal regulations applicable to MKR; prevent the

development        of     pressure       sores;     and      prevent   and/or        treat




                                             3                                  A-0245-12T3
infections in a timely and appropriate manner. Plaintiff claimed

that,    as    a     "direct      and    proximate     result"        of     defendant's

negligence, Mrs. Ptaszynski suffered personal injuries, endured

physical      pain    and    suffering       and   a   loss      of        dignity,    and

ultimately died.

       In counts two and three, plaintiff asserted claims under

the Nursing Home Responsibilities and Residents' Rights Act (the

"NHA"), N.J.S.A. 30:13-1 to -17. The claim in count two was

asserted pursuant to N.J.S.A. 30:13-4.2 and alleged that MKR

violated      N.J.S.A.      30:13-3h,     which    requires   nursing          homes    to

comply with all applicable state and federal statutes, rules and

regulations. The claim in count three was asserted pursuant to

N.J.S.A.      30:13-8a   based      on   defendant's     alleged       violations      of

Mrs. Ptaszynski's right under N.J.S.A. 30:13-5j "to a safe and

decent living environment and considerate and respectful care

that    recognizes          the    dignity     and     individuality            of     the

resident[.]"

       In addition, in count four, plaintiff asserted a claim on

behalf of Mrs. Ptaszynski's survivors under the Wrongful Death

Act, N.J.S.A. 2A:31-1 to -6. Plaintiff alleged that, as a result

of defendant's wrongdoing, Mrs. Ptaszynski died prematurely and

her survivors had sustained economic losses.

       Defendant filed an answer in which it denied liability and




                                           4                                    A-0245-12T3
asserted generally that the complaint failed to state a claim

upon   which    relief     could      be    granted.      Defendant      also   asserted

various      defenses    and     claimed,         among   other    things,      that   the

provisions of New Jersey's Charitable Immunity Act (the "CIA"),

N.J.S.A.      2A:53A-7     and    -8,      either     barred      plaintiff's      claims

entirely or limited her right to damages. In addition, defendant

asserted that the NHA was not applicable because MKR was not a

"nursing home."

       On November 3, 2011, plaintiff filed a motion for partial

summary judgment, seeking a determination that MKR was subject

to and was required to comply with certain federal and state

statutes     and   regulations        that     apply      to   skilled    nursing      care

facilities      and     long-term          skilled     nursing     care     facilities.

Defendant opposed the motion, and argued that these statutes and

regulations did not apply to MKR because it is not a "nursing

home."

       The    trial     court    granted      plaintiff's         motion.    The    court

determined      that     MKR    met    the    "very       broad   definition"       of    a

"nursing home" in N.J.S.A. 30:13-2c. The court also determined

that MKR was a "skilled nursing facility," and was subject to

state and federal regulations that applied to those facilities,

as well as the statutory and licensing standards for long-term

care facilities.




                                              5                                  A-0245-12T3
    Defendant thereafter filed a motion in limine in the trial

court seeking, among other relief, a determination that, if MKR

was considered to be a nursing home, defendant was entitled to

complete charitable immunity under N.J.S.A. 2A:53A-7 for non-

profit entities organized "exclusively for religious, charitable

or educational purposes[.]" Alternatively, defendant argued that

if MKR is considered to be a hospital, it is entitled to the

limited     charitable         immunity    under          N.J.S.A.      2A:53A-8,       which

provides a $250,000 cap on damages caused by the negligence of

non-profit     entities          "organized           exclusively         for       hospital

purposes[.]"       The   judge     denied       the    motion      without         prejudice,

ruling that defendant could file a motion after the trial and

seek to mold the verdict on this basis.

    The     matter       was    tried     before      a    jury,     which      found    that

defendant    was    negligent      and     its     negligence        "was      a   proximate

cause of harm" to Mrs. Ptaszynski. The jury also found that

defendant was liable under the NHA because defendant violated

"one or more of the rules, regulations, or State or Federal

statutes applicable" to Mrs. Ptaszynski's care, and that such

violation "was a proximate cause of harm" to her.

    The     jury     awarded      plaintiff        $250,000        on    the       negligence

claim, and $250,000 on the claims asserted under the NHA. In

addition, the jury awarded Mrs. Ptaszynski's survivors $50,000




                                            6                                        A-0245-12T3
on   the    wrongful       death          claim.       The   judge     granted        defendant's

motion and dismissed plaintiff's claim for punitive damages.

      Thereafter, defendant filed a motion to cap the damages

award      at   $250,000        pursuant         to     N.J.S.A.     2A:53A-8.          The   judge

denied      the   motion.        The       judge       ruled    that      the    limitation         on

damages in N.J.S.A. 2A:53A-8 only applied to the damages awarded

on   the    negligence      claim,          and       that   award     did      not   exceed     the

$250,000 statutory cap. The court entered a final judgment for

plaintiff, which included an award of attorney's fees pursuant

to the NHA.          This appeal followed.

                                                  II.

      Defendant argues that the trial court erred by permitting

plaintiff       to    pursue     a     claim       under       N.J.S.A.      30:13-4.2        for    a

violation of defendant's "responsibility" under N.J.S.A. 30:13-

3h to comply with applicable state and federal statutes and

regulations.         Because     this       argument         was    not    raised       below,      we

consider the argument under the plain error standard in Rule

2:10-2.

      The NHA was enacted in 1976 to declare "a bill of rights"

for nursing home residents and define the "responsibilities" of

nursing homes. L. 1976, c. 120, § 1, codified at N.J.S.A. 30:13-

1.   The    "rights"       of    nursing         home    residents        are     set    forth      in

N.J.S.A.        30:13-5a    to       n,    and     include      a    resident's         right    to:




                                                   7                                      A-0245-12T3
manage    his   or    her     own    financial     affairs,       unless      a   guardian

authorizes      the    nursing       home    to   do   so;    privacy;        retain     the

services of his or her own physician; unrestricted communication

and   personal       visits    at    a   reasonable      hour;     food       that    meets

religious dietary requirements; and "a safe and decent living

environment and considerate and respectful care that recognizes

the dignity and individuality of the resident[.]" Ibid.

      Furthermore,      the     responsibilities         of   a    nursing        home   are

defined    in     N.J.S.A.          30:13-3a      to    j.     They       include        the

responsibility        to:   maintain        complete   records       of   a   resident's

funds and personal property; provide for the spiritual needs and

wants of residents; admit only the number of residents for which

it could safely provide care; ensure applicants and residents

are not subject to discrimination based on age, race, religion,

sex or national origin; ensure that drugs are not employed as

punishment or for the convenience of staff; permit access by

legal    services     staff;        ensure    compliance      with    all     applicable

state    and    federal       statutes,      rules     and    regulations;         provide

residents with a written statement of services and charges; and

provide the resident or family with a copy of the admissions

contract. Ibid.

      As initially enacted in 1976, the NHA provided in N.J.S.A.

30:13-8a that:




                                             8                                     A-0245-12T3
           [a]ny 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 and Senior Services[1] 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.

           (Emphasis added).]

    Thus, under the NHA as initially enacted, a person could

only bring a claim for a violation of a nursing home resident's

"rights"   as    defined   in   the   law.    The   provisions    of   N.J.S.A.

30:13-8a   did    not   authorize     a   person    to   bring   an   action   to

enforce the nursing home's "responsibilities" as defined in the

law. Under N.J.S.A. 30:13-8a, only the Department of Health (the

"DOH") could bring such an action.

    The NHA was amended in 1991, adding two statutory sections,

which are codified in N.J.S.A. 30:13-4.1 and N.J.S.A. 30:13-4.2.

L. 1991, c. 262, §§ 1, 2. These statutes apply when a nursing

home requires a security deposit before admitting a person to


1
  The Department is now known as the Department of Health. See
L. 2012, c. 17 (reorganizing and renaming the Department as the
DOH and transferring certain programs to a newly created
Division of Aging Services).



                                          9                             A-0245-12T3
the facility. Among other things, N.J.S.A. 30:13-4.1 establishes

requirements      for       the     investment            of     security         deposits       in

interest-bearing           or     dividend-yielding                accounts,         notifying

residents about the investments, and the return of the deposits

with   the    interest       or     earnings,           less    allowed      deductions         for

administrative expenses, when the resident no longer resides in

the nursing home.

       In    addition,      N.J.S.A.         30:13-4.2         provides      that    a    person

"shall have a cause of action against the nursing home for any

violation of this act." (Emphasis added). Under N.J.S.A. 30:13-

4.2, the DOH is authorized to bring an action to enforce the

provisions      of        "this     act      and        any     rules       and    regulations

promulgated pursuant to this act." Ibid. (Emphasis added).

       As we stated previously, in count two of her complaint,

plaintiff asserted a claim under N.J.S.A. 30:13-4.2, based on

defendant's      alleged         violation         of    its     "responsibility"           under

N.J.S.A.      30:13-3h      to    ensure          "compliance      with      all    applicable

State and federal statutes and rules and regulations."                                   We must

determine whether N.J.S.A. 30:13-4.2 allows a private party such

as   plaintiff       to    pursue      a    cause       of     action   for       this   alleged

violation of the NHA.

       Our   "paramount         goal       when    interpreting         a    statute"      is   to

ascertain the Legislature's intent. DiProspero v. Penn, 183 N.J.




                                                  10                                     A-0245-12T3
477, 492 (2005). In general, the "best indicator of that intent

is the language of the statute." Ibid.                     We must give the words

of a statute "their ordinary meaning and significance, and read

them in context with the related provisions so as to give sense

to    the   legislation     as   a    whole[.]"       Ibid.   (internal     citations

omitted). If the statutory language may lead to more than one

plausible      interpretation,        we    will    examine    extrinsic     evidence

such as legislative history and committee reports to determine

the Legislature's intent. Id. at 492-93.

       The plain language of N.J.S.A. 30:13-4.2 and the context in

which the phrase "this act" is used in N.J.S.A. 30:13-4.1 and

N.J.S.A. 30:13-4.2 indicate that the Legislature intended the

phrase to mean the amendatory legislation enacted in 1991, not

the    whole    of    the    NHA.         For    example,     N.J.S.A.      30:13-4.1g

authorizes     the    Commissioner         of    Banking    (the   "COB")    to   adopt

"rules and regulations with respect to the establishment of the

method of computing the interest due . . . pursuant to the

provisions of this act. . . ." (Emphasis added).

       The authority granted to the COB pertains solely to the

computation      of   interest       on    security    deposits     under     N.J.S.A.

30:13-4.1, not to other provisions of the NHA. The amendatory

legislation also states that "this act" shall take effect on the

first day of the sixth month after its enactment. L. 1991, c.




                                            11                                A-0245-12T3
262, § 3. The term "this act" as used in this section of the

legislation obviously refers to the statutory amendments, not

the NHA as a whole.

       There is no indication that, in enacting the amendments to

the NHA, the Legislature intended to confer upon nursing home

residents the ability to bring actions to enforce any violation

of the NHA. The 1991 legislation imposed upon nursing homes new,

specific      requirements     pertaining       to   security    deposits,       and

allowed       residents   to      bring      actions     to     enforce       those

requirements, not other responsibilities that nursing homes have

under the law.

       Even if we viewed the phrase "this act" as ambiguous when

read in the context of the entire NHA, the conclusion that the

phrase "this act" in N.J.S.A. 30:13-4.2 only applies to the 1991

amendments is supported by the legislative history of the bill.

The Statement of the Senate Senior Citizen and Veterans Affairs

Committee to Senate, No. 1560, dated January 25, 1990, which was

later enacted as L. 1991, c. 262, provides in pertinent part

that "a person shall have a cause of action against a nursing

home    for    any   violations    of     the    provisions     of   the    bill."

(Emphasis added). The Statement of the Assembly Senior Citizens

Committee to Senate, No. 1560, dated June 17, 1991, included an

identical statement. These legislative statements indicate that




                                        12                                 A-0245-12T3
the amendatory legislation was intended to allow individuals to

assert a cause of action for a violation of the provisions of

the "bill" relating to security deposits, not for a violation of

any other provision of the NHA.

    We     therefore   conclude      that     N.J.S.A.    30:13-4.2    does     not

permit plaintiff to assert a cause of action for the alleged

failure     by   defendant    to     fulfill    its      responsibility       under

N.J.S.A.    30:13-3h   to    comply     with    all    applicable     state     and

federal statutes, rules and regulations. The trial court erred

by permitting plaintiff to pursue the claim in count two.

    As noted previously, in counts two and three, plaintiff

asserted two claims under the NHA. The jury returned a single

verdict on both NHA claims. Because the claim in count two is

not permitted by the NHA, the verdict on the NHA claims and the

award of counsel fees pursuant to that law must be set aside.

The matter is remanded for entry of an order dismissing with

prejudice    the   claim    asserted    in    count   two,   and    for   further

proceedings on count three, as discussed later in this opinion.

                                       III.

    Defendant      also     argues     that    the    verdicts     rendered     for

plaintiff on the negligence and wrongful death claims should be

reversed on several grounds. We agree for the following reasons.




                                        13                                A-0245-12T3
    A. Expert Testimony of Plaintiff's Nursing Expert

    At    trial,      plaintiff       asked   the     court       to   qualify     Ilene

Warner-Maron ("Warner-Maron") as an expert in various nursing

care standards, the federal and state statutes and regulations

that apply to MKR, and the treatment of pressure sores. The

judge granted plaintiff's application.

    The judge also told the jury he was "satisfied" Warner-

Maron   was   qualified       as   an   expert   "in       the    field    of   nursing

standards of care, the nursing law, clinical requirements for

treatment of pressure ulcers in a nursing facility," and that

Warner-Maron       could    testify     and   offer    her       opinions   on     these

subjects.     In   his     final   instructions       to    the    jury,    the    judge

reiterated that Warner-Maron had been called as an expert in

"nursing law."

    Generally, expert opinion testimony on matters of domestic

law is not admissible. State v. Grimes, 235 N.J. Super. 75, 80

(App. Div.), certif. denied, 118 N.J. 222 (1989). Rather, the

trial judge has the exclusive responsibility to instruct the

jury on the law to be applied to avoid the "danger . . . that

the jury may think that the 'expert' in the particular branch of

the law knows more than the judge[.]" Ibid. (quoting Marx & Co.

v. Diners' Club, Inc., 550 F.2d 505, 512 (2d Cir.), cert. denied

434 U.S. 861, 98 S. Ct. 188, 54 L. Ed. 2d 134 (1977)).




                                         14                                     A-0245-12T3
       Although it was permissible for the judge to allow Warner-

Maron       to     cite        specific        federal       and        state    statutes        and

regulations         as       support       for     her    opinions        on    the    applicable

standard of care, the judge erred by permitting her to testify

extensively as an expert in "nursing law."

       The judge also erred because he permitted Warner-Maron to

provide her opinion of the meaning of the word "dignity" in

N.J.S.A.         30:13-5j.           Defense       counsel        had     objected       to     this

testimony on the ground that it improperly allowed Warner-Maron

to    interpret          a    statute.       The     judge    overruled          the    objection

because plaintiff's claim for damages included the loss by Mrs.

Ptaszynski of the enjoyment of life. The judge observed that

"dignity can play a role in loss of enjoyment of life." Warner-

Maron's      testimony         was     specifically        directed,           however,    to    the

meaning of the statute, not plaintiff's damage claim.

       The       judge       told    the    jury    that     it    was    not    bound    by     the

testimony of an expert, but he merely read N.J.S.A. 30:13-5j to

the jurors and did not provide any guidance to the jury as to

its     meaning.         The        jury    was     left     with       only     Warner-Maron's

interpretation of the statute to guide its deliberations.

       We    are     convinced             that     the    judge's        erroneous       rulings

regarding        Warner-Maron's            testimony       had     the    clear       capacity   to

affect the jury's decisions on the negligence and wrongful death




                                                   15                                     A-0245-12T3
claims, and the errors required reversal of those verdicts.

       B. Mrs. Ptaszynski's Pre-Existing Conditions

       At the charge conference, defense counsel asked the judge

to instruct the jury to consider Mrs. Ptaszynski's pre-existing

conditions in determining liability on the negligence claim. The

judge determined that the charge was not warranted because there

was no evidence indicating that Mrs. Ptaszynski had suffered

from pressure sores, an infection "or other things that were

claimed to be the cause of death" before she entered MKR.

       To sustain a cause of action for negligence, a plaintiff

must   prove     that   the   defendant's      negligent   conduct    was    the

proximate cause of the asserted harm. Skripek v. Bergamo, 200

N.J. Super. 620, 633-34 (App. Div.), certif. denied, 102 N.J.

303    (1985).    However,    "'a    defendant    whose    acts   aggravate     a

plaintiff's preexisting condition is liable only for the amount

of    harm   actually   caused      by   the   [defendant's]      negligence.'"

Scafidi v. Seiler, 119 N.J. 93, 110 (1990) (quoting Ostrowski v.

Azzara, 111 N.J. 429, 439 (1988)).

       In a negligence case with a single alleged cause of harm,

the jury is instructed on proximate cause in accordance with the

standard "but for" instruction. Anderson v. Picciotti, 144 N.J.

195, 202 (1996). The instruction allows a plaintiff to recover

only if the plaintiff can establish that the injury would not




                                         16                            A-0245-12T3
have occurred "but for" the defendant's negligence. Verdicchio

v. Ricca, 179 N.J. 1, 23 (2004). However, in cases where there

is sufficient evidence to show within a reasonable degree of

medical   probability         that    the    alleged    negligent       treatment      may

have increased the risk of harm posed by an individual's pre-

existing injury, the jury must be instructed to consider whether

the increased risk was a substantial factor in producing the

ultimate result. Scafidi, supra, 119 N.J. at 108-14. See also

Model    Jury    Charge      (Civil),       5.50E,     Pre-Existing      Condition        –

Increased Risk/Loss of Chance — Proximate Cause (2014).

       In this case, defendant presented testimony from an expert

in   geriatrics     and      internal    medicine.      He     testified       that   Mrs.

Ptaszynski       had     been    taking       blood-pressure       medication.           In

addition, a study at MMH showed that both arteries in her leg

were    blocked.       The   expert    testified       that,    with    "no    blood    or

little blood going to the heels," eventually a person "would

develop a bedsore there." He further testified that, in his

opinion, given Mrs. Ptaszynski's other health problems, she "was

a little bit of a setup for bedsores."

       Another     defense      expert      testified    that    Mrs.    Ptaszynski's

pressure sores "absolutely had nothing to do" with the                                MRSA

infection    that      caused    her     death.   According       to    this    witness,

tests showed that there was no MRSA bacteria present in any of




                                             17                                  A-0245-12T3
Mrs. Ptaszynski's pressure sores. The expert opined that Mrs.

Ptaszynski's toe infection was caused by a hammertoe and ingrown

toenail, and by vascular compromise.

    In view of the evidence of Mrs. Ptaszynski's pre-existing

health conditions, and the experts' testimony, a reasonable jury

could have found that any harm to Mrs. Ptaszynski, including her

death,    was   caused   by    her    pre-existing         conditions,    not    the

alleged negligent care attributed to defendant. We are therefore

convinced that the judge erred by failing to provide the jury

with a Scafidi instruction.

    C. Double Recovery

    In     this    case,       plaintiff       sought       damages      for    Mrs.

Ptaszynski's personal injuries, mental anguish, loss of dignity

and death. Plaintiff's evidence did not, however, distinguish

between   the   injuries      and    harm    caused   by    defendant's      alleged

violations of the NHA and its alleged negligence.

    "[I]t is fundamental that no matter under what theories

liability may be established, there cannot be any duplication of

damages." P. v. Portadin, 179 N.J. Super. 465, 472 (App. Div.

1981). The common law prohibits a double recovery for the same

injury. Buccheri v. Montgomery Ward & Co., 19 N.J. 594, 605

(1955).    Furthermore,       it    would     be   inconsistent       with     well-

established principles to require a tortfeasor to pay twice for




                                        18                                 A-0245-12T3
the same damages caused by a single wrong. Alfone v. Sarno, 87

N.J. 99, 115 (1981).

       Here, the jury was not instructed that it could not award

plaintiff damages for defendant's violations of the NHA and its

negligence    based   upon    the    same    injuries   or      harm   to    Mrs.

Ptaszynski. As noted, the jury awarded plaintiff $250,000 for

the NHA violations, and $250,000 on the negligence claim. Based

on the judge's instructions, those awards could have been based

on the same injuries or harm.

       Plaintiff   argues    that   the    evidence   allowed    the    jury    to

infer that Mrs. Ptaszynski suffered different injuries and harm

from   defendant's    negligence     and    its   violations     of    the   NHA.

Plaintiff notes that the judge had instructed the jury that

plaintiff was only entitled to fair and reasonable compensation.

Plaintiff    contends       that    the     instructions      prevented        the

possibility of a double recovery for the same injuries or harm.

       We do not agree. If properly instructed, the jury could

have allocated the damages to the separate claims, based on the

different theories of liability being asserted, but the jury was

not provided with those instructions. We cannot assume that the

jury allocated its damage awards based on the different theories

of recovery being advanced in this case.

       Accordingly,   the     verdicts      and   damage     awards     on     the




                                      19                                A-0245-12T3
negligence and wrongful death claims are reversed and the matter

remanded for a new trial on these claims.

                                    IV.

    We turn to several other issues that defendant has raised

on appeal.

    A. Charitable Immunity

    Defendant     argues     that   the   judge     erred   by   refusing   to

consider   its   pre-trial    motion      for    immunity   under   the    CIA.

Defendant further argues that the judge misinterpreted the CIA

when he denied its post-verdict motion to mold the verdict. In

support of its contention that it is entitled to the limited

immunity     afforded   to    hospitals         under   N.J.S.A.    2A:53A-8,

defendant argues that it is not a "nursing home" under the NHA.

    The    CIA   provides    complete     immunity      from   liability    for

damages to any "nonprofit corporation, society or association

organized exclusively for religious, charitable or educational

purposes" for damages caused by its negligence when the injured

person "is a beneficiary, to whatever degree, of the works of

such nonprofit corporation, society or association[.]" N.J.S.A.

2A:53A-7(a). In addition, the CIA provides a $250,000 limitation

on the damages for negligence that may be awarded against a

nonprofit corporation, society or association that is "organized

exclusively for hospital purposes." N.J.S.A. 2A:53A-8.




                                     20                              A-0245-12T3
    The CIA therefore immunizes certain nonprofit entities for

simple negligence, but not for intentional, reckless or grossly

negligent conduct. Hardwicke v. Am. Boychoir Sch., 188 N.J. 69,

97 (2006). The immunity provided by the CIA applies both to

statutory and common-law claims. Id. at 97 n.11.

    Here,     the       judge       initially    refused      to    consider     whether

defendant was entitled to charitable immunity because defendant

did not bring the motion raising this issue until the eve of

trial. Moreover, the record reflects that, in support of that

motion, defendant presented the judge with factual material that

had not been presented during discovery.

    As     noted,       the    judge    allowed      defendant      to    make   a   post-

verdict    motion       on    the    immunity     issue,    and     then    denied     the

motion. The judge apparently found that the $250,000 limitation

on damages in N.J.S.A. 2A:53A-8 applied to defendant, but ruled

that the issue was moot because the $250,000 damage award on the

negligence claim did not exceed the statutory limit.

    We are convinced that the judge erred by assuming that the

limitation   on     damages         only   applies    to   plaintiff's       negligence

claims.    When     a    plaintiff's       cause     of    action    is    based     on    a

statute,    and   the         defendant    alleges     that    it    is    entitled       to

immunity under the CIA, the claims must be reviewed to determine

whether the conduct that is statutorily prohibited falls within




                                            21                                   A-0245-12T3
the scope of common law negligence. Hardwicke, supra, 188 N.J.

at 94-99. Therefore, on remand, the trial court must consider

whether    plaintiff's    NHA     and    wrongful   death   claims     are

essentially negligence-based and also subject to the immunities

provided by the CIA.

       Furthermore, if the trial court finds that that defendant

is not a "hospital" for purposes of immunity under the CIA, it

must    determine   whether     defendant   is   entitled   to   complete

immunity under N.J.S.A. 2A:53A-7a. To qualify for immunity under

this statute, defendant must establish that it was organized

"exclusively for religious, charitable or educational purposes."

Ibid. (Emphasis added).

       B. Whether MKR is a "nursing home" under the NHA

       The term "nursing home" is defined in the NHA to mean

           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. 30:13-2c.]

       In its answer, defendant asserted that it is not a "nursing

home" as defined in the NHA and therefore the NHA does not



                                    22                           A-0245-12T3
apply. Further, in response to plaintiff's motion for partial

summary judgment, and in its motion in limine on the charitable

immunity defense, defendant argued that it was a hospital, not a

nursing home.

       We    note,     however,    that    defendant       never   filed         a    motion

seeking summary judgment on the NHA claims on this basis. On

appeal, defendant's arguments regarding the NHA are raised in

support of its contention that it is entitled to charitable

immunity       under    N.J.S.A.       2A:53A-8.    Nevertheless,           plaintiff's

ability to maintain her cause of action in count three turns

upon    whether      defendant's        facility    is    a   "nursing       home"         for

purposes of the NHA.

       We     are    convinced     that     the     record     does        not       provide

sufficient information to determine whether MKR is a "nursing

home" for purposes of the NHA. Defendant contends that the NHA

was not intended to apply to a hospital-based facility like MKR,

where persons are admitted for fewer than thirty days for sub-

acute       rehabilitation.       In    response,    plaintiff        contends           that

defendant      operates    a   hospital-based,           long-term    care       facility

which meets the definition of a nursing home in N.J.S.A. 30:13-

2c.

       The record indicates that the DOH issued two licenses to

defendant.       One    license        authorized    defendant        to     operate          a




                                           23                                        A-0245-12T3
comprehensive rehabilitation hospital consisting of thirty-eight

beds.    The    other     license      permitted         defendant            to    operate        a

hospital-based,     long-term         care    facility         with       forty      beds.       The

licenses do not state, however, that MKR is licensed to operate

as a nursing home.

       We also note that nothing in the record indicates that the

DOH    ever    issued   a   separate         certificate            of    need      ("CN")        to

defendant      authorizing      the    establishment            of       a    nursing          home.

N.J.S.A.      26:2H-7   provides       that        a    CN     is    required          for       the

construction or expansion of "health care facilities," a term

defined in N.J.S.A. 26:2H-2a to include "nursing homes." See

also    N.J.S.A.   26:2H-7.2        and     -7.3       (exempting            certain      nursing

homes from the CN requirement).

       In addition, it is not clear from the record whether MKR is

a   facility    that    would    be     permitted         to    provide            care     on    "a

continuing      basis",     which      is     an       essential          element         of     the

definition of a "nursing home" in the NHA. N.J.S.A. 30:13-2c.

As defendant notes, patients are treated temporarily at MKR,

with the expectation that they will be moved to another facility

for long-term or "continuing" care if needed.

       Plaintiff insists that, because MKR is required to comply

with    certain    standards     that        apply      to   the         care      provided      to

persons in nursing homes, MKR                 must be considered a "nursing




                                             24                                           A-0245-12T3
home" under the NHA.         Defendant maintains, however, that MKR is

a "hospital" even though those standards also may apply to the

care provided to persons treated at MKR. The trial court should

address these arguments on remand.

       The parties should be afforded an opportunity to present

additional evidence in support of their respective arguments on

whether MKR is a "nursing home" for purposes of the NHA. This

court's recent decision in Bermudez v. Kessler Institute for

Rehabilitation,             N.J. Super.             (App.       Div.     2015),     may

provide the trial court and the parties with some guidance in

resolving this issue. There, the panel held that a comprehensive

rehabilitation hospital is not a "nursing home" for purposes of

the NHA. Id. at             (slip op. at 4).

       We   note     that    defendant        has     also      argued    that:     (1)

plaintiff's claims should have been dismissed because she failed

to    identify     deviations   by   individual           practitioners;     (2)    the

trial judge erred by allowing Warner-Maron to testify as to the

cause of Mrs. Ptaszynski's death; (3) the federal regulations do

not   establish     a   cause   of   action;        (4)   the   federal    and    state

statutes    and     regulations      relied     upon       by   plaintiff    do     not

establish the applicable standard of care; (5) the judge erred

by precluding the admission of the results of the DOH's surveys




                                         25                                  A-0245-12T3
of MKR; and (6) the counsel fee award should be set aside. In

view of our decision, we need not address these arguments.

    Reversed and remanded for further proceedings in accordance

with this opinion. We do not retain jurisdiction.




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