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Profeta v. Dover Christian Nursing Home

Decided: March 14, 1983.


On Appeal from the Superior Court of New Jersey, Law Division, Morris County.

Michels and Trautwein.

Per Curiam

[189 NJSuper Page 84] Plaintiffs appeal from a summary judgment dismissing their complaint. The complaint, in four counts, alleged that defendant Dover Christian Nursing Home (nursing home) violated its statutory duty to notify next of kin of any change in a patient's medical condition (count I); nursing home was negligent in its failure to give such timely notice (count II); nursing home's failure to give notice arose out of willful and wanton conduct (count III), and the home's disregard of its statutory duty was intentional (count IV). Plaintiffs sought both compensatory damages, based on their mental pain and anguish, and punitive damages. Defendant answered and joined the patient's private physician as a third-party defendant. Nursing home then moved for summary judgment, which was granted. This appeal followed.

From the pleadings and affidavits before the trial court we glean the following undisputed facts. Plaintiffs Lynn and Fred Profeta are the daughter and grandson of Ferdinand Virgilio. Virgilio was admitted to nursing home on October 26, 1977.*fn1 Nursing home is a wholly-owned subsidiary of the Christian Research Institute, a Delaware corporation organized as a nonprofit religious and educational corporation authorized to do business in New Jersey. Virgilio became seriously ill on February 11, 1978. Plaintiffs were not notified of this fact. On February 12, 1978 Lynn Profeta, in making a regular visit to the nursing home, found her father vomiting on himself and unable to breathe. She immediately had her father transferred to a hospital but he died on February 14, 1978. Plaintiffs filed their complaint against the nursing home on February 8, 1980.

Plaintiffs sought recovery under N.J.S.A. 30:13-1 et seq., entitled "An act concerning the responsibilities of nursing homes and the rights of nursing home residents" and more commonly known as the nursing home residents' "bill of rights." The declared purpose of the act is to advance the well-being of the residents by defining their rights so that these rights may be better asserted. A finding that "residents of nursing homes are all too often given inferior treatment" led to the inclusion in the act of detailed standards of care for all nursing homes. Senate Institutions, Health and Welfare Committee, Statement to Senate Bill No. 944 (June 4, 1976).

In granting defendant's motion for summary judgment the trial judge concluded:

I am of the opinion that such a claim, the infliction of the emotional distress of a daughter and a grandson as a result of the death of a nursing home resident because of failure to notify, does not give rise to a statutorily-created or other cause of action in this jurisdiction.

I make brief reference without discussing the case in detail to Portee v. Jaffee, 83 [84] N.J. 88, decision of our New Jersey Supreme Court, 1980, in which

Justice Pashman carefully outlined the circumstances under which in this jurisdiction a person who does not have potential for personal injury himself or herself can recover for distress resulting from perceiving the negligently-inflicted injuries over another.

That's the limitation on that case. There was nothing perceived here. Everything occurred after the fact insofar as any emotional distress could be concerned.

Our careful review of the pleadings, the affidavits offered on the motion for summary judgment and the briefs discloses that the sole relevant issue on appeal is whether plaintiffs have requisite standing to bring suit under N.J.S.A. 30:13-8.*fn2 That statute states:

Any person or resident whose rights as defined herein are violated shall have a cause of action against any person committing such violation. The Department of Health may maintain an action in the name of the State to enforce the provisions of this act and any rules or regulations promulgated pursuant to this act. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for their violation. Any ...

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