Full 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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. A-1103-24 2 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. A-1103-24 3 "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. A-1103-24 4 359 (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. A-1103-24 5 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). A-1103-24 6 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. A-1103-24 7 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]." A-1103-24 8 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. A-1103-24 9 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 A-1103-24 10 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).] A-1103-24 11 "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 A-1103-24 12 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 A-1103-24 13 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). A-1103-24 14 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 A-1103-24 15 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 A-1103-24 16 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 A-1103-24 17 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." A-1103-24 18 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 A-1103-24 19 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.merriam- webster.com/dictionary/extended (last visited Aug. 18, 2026). A-1103-24 20 "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). A-1103-24 21 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 A-1103-24 22 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 A-1103-24 23 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 A-1103-24 24 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 A-1103-24 25 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 A-1103-24