ESTATE OF JOSEPH GAMMA VS. CEDAR HILL HEALTHCARE CENTER(L-0199-11, ESSEX COUNTY AND STATEWIDE) <strong></strong>

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3544-13T4

ESTATE OF JOSEPH GAMMA
and MARIA GAMMA,
individually and as
Administratrix Ad Prosequendum of
ESTATE OF JOSEPH GAMMA,

Plaintiffs-Appellants/
Cross-Respondents,

v.

CEDAR HILL HEALTH CARE CENTER,
CG HEALTHCARE, L.L.C., AVERY
EISENREICH, TOBY EISENREICH,
OMNI ASSET MANAGEMENT, L.L.C.,
also known as "OMNI HEALTH CARE
ASSOCIATES" and "OMNI RISK
MANAGEMENT",

Defendants-Respondents/
Cross-Appellants.
_______________________________________________________________

Argued December 9, 2015 – Decided June 30, 2017

Before Judges Koblitz, Kennedy, and Gilson.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-0199-11.

Steven J. Greenstein argued the cause for
appellants/cross-respondents (Tobin, Kessler,
Greenstein, Caruso, Weiner & Konray, P.C., and
The Gruber Firm, L.L.C., attorneys; Mr.
 Greenstein, of counsel and on the brief; Saul
G. Gruber, on the brief).

Neil Ptashnik argued the cause for the
respondents/cross-appellants (Ansa Assuncao,
L.L.P., and Ptashnik & Associates, L.L.C.,
attorneys; John P. Mueller and Mr. Ptashnik,
on the brief).

PER CURIAM

Joseph Gamma ("Joseph") died from injuries he suffered when

he fell on the floor of a nursing home. His Estate and wife, as

Administrator Ad Prosequendum (collectively "plaintiffs"), filed

an action against defendants, alleging that Joseph's death was the

result of falling off a bed without bedrails. At the close of

trial, the trial judge granted a directed verdict in favor of

defendants on the counts under the New Jersey Nursing Home

Responsibilities and Residents' Rights Act (the Act), N.J.S.A.

30:13-1 to -17, and the jury returned a verdict of no-cause on the

remaining negligence count.

Plaintiffs appeal and claim multiple errors, including that

the trial judge erred when he failed to ask prospective jurors

open-ended questions, as mandated by Administrative Directive #4-

07, "Jury Selection – Model Voir Dire Questions Promulgated by

Directive #21-06 – Revised Procedures and Questions" (the

Directive). See Administrative Directive #4-07, "Jury Selection

– Model Voir Dire Questions Promulgated by Directive #21-06 –

2 A-3544-13T4
Revised Procedures and Questions" (May 16, 2007),

http://www.njcourts.gov/attorneys/assets/directives/dir_04_07.pd

f. Defendants cross-appeal contending that the motion court

improperly permitted hearsay evidence. For the following reasons,

we affirm the trial court's directed verdict and the motion court's

decision to admit Joseph's statement, but reverse and remand for

a new trial because the trial judge erred in not following the

Directive.

I.

The facts are established in the trial record. In the early

morning hours of January 8, 2009, Cedar Hill Nursing Home's (Cedar

Hill) staff observed Joseph, a patient at Cedar Hill, asleep in

his bed. Approximately twenty minutes thereafter, staff observed

Joseph on the floor next to his bed with injuries to his toes.

According to staff notes, Joseph stated that he rolled out of his

bed while asleep. The staff transferred Joseph to Clara Maass

Hospital, where he again told hospital staff that he fell out of

his bed. After an examination, the hospital concluded Joseph

suffered only toe lacerations. He was returned back to Cedar

Hill.

On January 12, 2009, Joseph complained of left side weakness

and back spasms. He was readmitted to Clara Maass and again

referenced his fall on January 8. Over the following months,

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Joseph experienced additional complications. He was eventually

admitted to another hospital, where he was diagnosed with

respiratory failure, among other issues. In defiance of hospital

staff warnings, Joseph's wife fed him solid food, which led to

cardiopulmonary arrest and ultimately, his death on March 12,

2009.

Joseph's wife filed a complaint individually and as the

Administrator Ad Prosequendum of the Estate, alleging that the

fall on January 8, 2009, was a result of Cedar Hill's failure to

outfit the bed with bedrails and caused Joseph's death. The

complaint asserted violations of a resident's rights under the

Act, violations of defendants' responsibilities under the Act,

general negligence, negligence per se, deviation from the standard

of care and gross neglect, negligent supervision and negligent

hiring, punitive damages, consumer fraud, survivorship, and

wrongful death.

Prior to trial, defendants moved for summary judgment.

Defendants argued that plaintiffs' entire case rested upon a single

hearsay statement. The motion court dismissed many of the claims,

including the wrongful death count. However, the motion court

denied summary judgment as to the claims of negligence and

violations of the Act. The motion court also rejected defendants'

hearsay argument.

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 The matter then proceeded to trial on the claims of violations

of the Act and negligence. At the close of trial, the court

directed a verdict in favor of defendants on the claims under the

Act, and thereafter, the jury found that plaintiffs failed to

prove the negligence claim and returned a verdict of no cause.

II.

On appeal, plaintiffs make the following arguments: 1)

reversal is required as the trial court erred in failing to comply

with the Directive and failed to ask three open-ended questions;

2) the trial court erred in dismissing plaintiffs' claims under

the Act; 3) the trial court erred in not granting a mistrial after

the parties discovered during the trial that the certified chart

relied upon was for a different patient; 4) the trial court erred

in admitting evidence of a stroke; 5) the trial court erred in not

admitting statements made by Joseph to the emergency room staff;

and 6) the trial court committed plain error in its jury

instructions. Defendants cross-appeal and argue that the motion

court should have precluded Joseph's statement to the Cedar Hill

staff as inadmissible hearsay.

We address only the following arguments: 1) whether the trial

court properly directed the verdict on counts brought under the

Act; 2) whether the motion court properly denied the defendants'

motion for summary judgment as it relates to the admissibility of

5 A-3544-13T4
Joseph's statement; and 3) whether the trial court committed

reversible error by not following the Directive.

After a review of the record and relevant law, we affirm the

trial court's directed verdict and the admissibility of Joseph's

statement. However, we hold that the trial court improperly

disregarded the Directive by failing to ask open-ended questions

during selection of the jury. Consequently, we are constrained

to vacate the judgment, reverse, and remand for a new trial on the

negligence claim.

A. The Trial Court's Directed Verdict

At the close of trial, the court directed the verdict on

plaintiffs' claims under the Act. The court reasoned that

plaintiffs could not maintain an action based on the evidence

presented at trial. Although we find alternative grounds for

directing the verdict, we uphold the result.

On appeal, plaintiffs contend that any violation of a state

or federal regulation, rule, or statute by a nursing home

automatically constitutes a violation of the Act. See N.J.S.A.

30:13-3(h). We disagree.

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

for nursing home residents and define the 'responsibilities' of

nursing homes." Ptaszynski v. Atl. Health Sys., Inc., 440 N.J.

Super. 24, 32 (App. Div. 2015), certif. denied, 227 N.J. 357

6 A-3544-13T4
(2016). The patient's "rights" are enumerated in N.J.S.A. 30:13-

5(a) to (n). The nursing home's "responsibilities" are enumerated

in N.J.S.A. 30:13-3(a) to (j). One such responsibility of a

nursing home is to "ensur[e] compliance with all applicable State

and federal statutes and rules and regulations." N.J.S.A. 30:13-

3(h). In addition, the Act includes two sections of enforcement

for violations of these sections: N.J.S.A. 30:13-8(a) and N.J.S.A.

30:13-4.2.

N.J.S.A. 30:13-8(a) provides, in pertinent part, that:

Any person or resident whose rights as defined
herein are violated shall have a cause of
action against any person committing such
violation. The Department of Health and
Senior Services 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.

N.J.S.A. 30:13-4.2 provides, in pertinent part, that:

A person shall have a cause of action against
the nursing home for any violation of this act
[C.30:13-4.1, 30:13-4.2]. The Department of
Health may maintain an action in the name of
the State to enforce the provisions of this
act and any rules and regulations promulgated
pursuant to this act.

We have held that neither section bestows upon an individual

the unbridled right to bring a cause of action against the nursing

home; rather, the statutes permit enforcement of the Act in limited

circumstances. See Ptaszynski, supra, 440 N.J. Super. at 33-36.

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Under N.J.S.A. 30:13-8(a), a person can only bring an action for

violation of one of the enumerated residents' "rights," set forth

in N.J.S.A. 30:13-5. N.J.S.A. 30:13-8(a) does not "authorize a

person to bring an action to enforce the nursing home's

'responsibilities' as defined in the law." Ptaszynski, supra, 440

N.J. Super. at 36. Furthermore, under N.J.S.A. 30:13-4.2, an

individual can only bring an action as it pertains to security

deposits, not for a nursing home's failure to fulfill its

responsibilities under N.J.S.A. 30:13-3(h). Ptaszynski, supra,

440 N.J. Super. at 34-36.

It follows that an individual does not have a private cause

of action for a nursing home's violation of its responsibilities.

An individual may have a cause of action against a nursing home

for violations of the individual's rights. However, the Act simply

does not provide the avenue for relief requested by plaintiffs.

As such, the trial court's decision to direct the verdict was

correct.

B. Defendants' Cross-Appeal

We next turn to defendants' cross-appeal. Defendants argue

that the motion court erred by admitting Joseph's hearsay statement

and denying summary judgment. Defendants contend that the motion

court erroneously admitted the statement pursuant to a hearsay

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exception, and without the statement, plaintiffs' case falls

apart. We do not agree.

During the motion for summary judgment, the motion court

admitted the proffered evidence pursuant to the hearsay exception

for the purpose of medical diagnosis or treatment. We treat this

determination as an evidential issue and apply an abuse of

discretion standard. "[A]dmission or exclusion of proffered

evidence is within the discretion of the trial judge whose ruling

is not disturbed unless there is a clear abuse of discretion."

Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div.

1991). We discern no such abuse of discretion with the admission

of Joseph's statements.

N.J.R.E. 803(c)(4) provides an exception to the hearsay rule,

regardless of the availability of a declarant:

Statements made in good faith for purposes of
medical diagnosis or treatment which describe
medical history, or past or present symptoms,
pain, or sensations, or the inception or
general character of the cause or external
source thereof to the extent that the
statements are reasonably pertinent to
diagnosis or treatment.

Thus, "statements which describe present or previous

symptoms, pain or sensations [] or their history are admissible

to prove the truth of the statements if the statements are relevant

to an issue of the declarant's condition." Biunno, Weissbard &

9 A-3544-13T4
Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E.

803(c)(4) (2015). However, "[s]tatements as to the cause of

injury, when the cause is irrelevant to diagnosis or treatment,

are inadmissible under the exception." Palmisano v. Pear, 306

N.J. Super. 395, 400 (App. Div. 1997).

The rationale underlying previous decisions "is that such

statements possess inherent reliability because 'the patient

believes that the effectiveness of the treatment he receives may

depend largely upon the accuracy of the information he provides

the physician.'" R.S. v. Knighton, 125 N.J. 79, 87 (1991) (quoting

McCormick on Evidence § 292 at 839 (3d ed. 1984)). New Jersey

cases faced with this issue have "demonstrate[d] an unwavering

adherence to that rationale[,]" with varying results. Knighton,

supra, 125 N.J. at 87. Some courts have held statements to be

inadmissible if a declarant lacked the "treatment motive" or if

the cause was irrelevant. See, e.g., Cestero v. Ferrara, 57 N.J.

497, 501 (1971); State v. D.R., 214 N.J. Super. 278, 288-89 n.4

(App. Div. 1986), rev'd on other grounds, 109 N.J. 348 (1988).

Others have held that the cause of injury was relevant to diagnosis

and treatment. Rose v. Port of N.Y. Auth., 61 N.J. 129, 138

(1972); Bober v. Indep. Plating Corp., 28 N.J. 160, 170-72 (1958);

Greenfarb v. Arre, 62 N.J. Super. 420, 437 (App. Div.), certif.

denied, 33 N.J. 454 (1960).

10 A-3544-13T4
 We find Greenfarb instructive. There, a wife sued her

husband's company for her husband's death. Greenfarb, supra, 62

N.J. Super. at 422. The wife alleged that her husband died due

to two work-related injuries: when he tripped over a handtruck and

when he lifted a 300-pound piece of dough. Ibid. After her

husband felt ill, she called his physician for an examination.

Ibid. The husband was hospitalized and diagnosed with a heart

attack. Id. at 423-24. Eventually, this led to the husband's

death. Id. at 424. At trial, the physician testified that the

decedent had lifted the dough. Ibid. The physician also testified

about the existence of a causal relationship between the lifting

of the dough and the injury that caused the decedent's death.

Ibid.

We determined that the physician's statements as to the

cause of injury were relevant to treatment and therefore

admissible. Id. at 426-27, 437. In employing a flexible view of

the hearsay exception, we considered the trustworthiness of the

declarant at the time of the statement, the temporal nature of the

statement, the condition of the declarant when speaking to the

medical professional, and whether the medical professional pursued

the inquiry to arrive at a diagnosis or treatment. Id. at 434.

Here, applying these principles, we conclude that the motion

court did not abuse its discretion in admitting the statement, and

11 A-3544-13T4
thus, the denial of summary judgment was not erroneous. Similar

to Greenfarb, it is reasonable to conclude that Joseph's statement

that he fell off the bed would help a diagnosis or treatment. Cf.

Greenfarb, supra, 62 N.J. Super. at 426-27. The statement could

have provided nuanced details to medical professionals that

compelled additional tests or questions. Furthermore, nothing in

the record suggests that Joseph's statement was made for the

purposes of "collecting compensation benefits." Id. at 427. We

agree with the motion judge's determination that Joseph's

statement was trustworthy and not made with compensation in mind.

As such, there was no abuse of discretion.

C. The Directive and Voir Dire

The Directive instructs trial judges on how to conduct the

jury voir dire process. See Administrative Directive #4-07, "Jury

Selection – Model Voir Dire Questions Promulgated by Directive

#21-06 – Revised Procedures and Questions" (May 16, 2007),

http://www.njcourts.gov/attorneys/assets/directives/dir_04_07.pd

f. This Directive, promulgated by our Supreme Court, is binding

upon all trial courts. State v. Morales, 390 N.J. Super. 470, 472

(App. Div. 2007) (quoting State v. Linares, 192 N.J. Super. 391,

397 (Law Div. 1983)). Its purpose "is to empanel a jury without

bias, prejudice or unfairness." Gonzalez v. Silver, 407 N.J.

12 A-3544-13T4
Super. 576, 596 (App. Div. 2009) (citing Morales, supra, 390 N.J.

Super. at 472, 475).

The Directive instructs the trial court to ask each potential

juror at least three open-ended questions. Specifically, the

Directive provides:

In addition to the printed questions, the
judge shall also inform the jurors in the box
and the array that jurors will also be
individually asked several questions that they
will be required to answer in narrative form.

. . . .

The judge will then ask [the] juror each of
the open-ended questions, to which a verbal
response shall be given and for which
appropriate follow up questions will be asked.

. . . .

Some open-ended questions must be posed
verbally to each juror to elicit a verbal
response. The purpose of this requirement is
to ensure that jurors verbalize their answers,
so the court, attorneys and litigants can
better assess the jurors' attitudes and
ascertain any possible bias or prejudice, not
evident from a yes or no response, that might
interfere with the ability of that juror to
be fair and impartial. Open-ended questions
also will provide an opportunity to assess a
juror's reasoning ability and capacity to
remember information, demeanor,
forthrightness or hesitancy, body language,
facial expressions, etc.

. . . .

The judge must ask at least three such
questions, in addition to the biographical

13 A-3544-13T4
 question and the two omnibus qualifying
questions. This is a minimum number and judges
are encouraged to ask more where such action
would be appropriate.

Here, the trial judge did not follow the Directive. The

judge asked potential jurors the standard biographical and omnibus

questions. The judge also asked, at times, several follow-up

questions, and permitted the attorneys the opportunity to ask

their own follow-up questions. However, these questions did not

follow the Directive's mandate of three open-ended questions. As

such, we find that the trial court abused its discretion and erred

by not adhering to the Directive.

Having determined that the trial court erred, we next analyze

whether this error warrants a reversal of the judgment. Generally,

some degree of harm must be shown. R. 2:10-2. As it relates to

the voir dire process, judges have an obligation to adhere to the

administrative directives, and counsel also has a duty to object

to the jury selection process. See Gonzalez, supra, 407 N.J.

Super. at 596. In addition, to reverse a judgment, we have also

held that there must be a "miscarriage of justice" resulting from

the failure to follow directives. Ibid.

Here, after a review of the record, we conclude that the

judge's abuse of discretion was not harmless and warrants reversal.

Plaintiffs' counsel requested that the trial court follow the

14 A-3544-13T4
Directive. The judge rejected this request and informed counsel

that it would ask enough questions to give counsel "an idea of

what type of person [the juror] might be" and that, depending upon

the answer, counsel may have the opportunity to explore with

additional questions at sidebar.

In several instances, the only time a few of the jurors

meaningfully spoke was when they provided biographical information

in front of the other seated jurors. The voir dire and open-ended

questions for several jurors consisted of only responding

generally to introductory questions.

Before calling a specific juror, the judge asked questions

to the entire prospective jury panel, including: whether they had

issues applying the law as restated by the judge, if they or any

family member or friend had ever filed a lawsuit of any kind, if

anyone they knew had a very good or very bad experience with a

medical professional or medical organization, or if they had any

existing opinions or strong feelings about a case with someone

alleging negligence against a nursing home. The judge also asked

if there was any other information the court or litigants should

know that would hinder the juror from serving fairly and

impartially. The extent of some jurors voicing their opinions or

positions on these questions was by responding "no."

15 A-3544-13T4
 This process failed to provide the required opportunity to

"better assess the jurors' attitudes and ascertain any possible

bias or prejudice," or "assess a juror's reasoning ability." The

questions did not elicit verbalized open-ended responses from each

juror, and we cannot confidently conclude that the jury empaneled

was both fair and impartial.

Because we reverse on other grounds, we need not address

plaintiffs' remaining arguments.

Reversed and remanded. We do not retain jurisdiction.

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