On appeal from the Superior Court, Law Division, Union County.
Milmed, Morton I. Greenberg and Furman.
[190 NJSuper Page 105] Defendants Pine Acres Nursing Home, Inc. ("Pine Acres"), Arnold Perlstein, individually and as owner-operator of Pine Acres, and Shean M. Liu, M.D. appeal from the entire final judgment entered following a jury trial in the Superior Court, Law Division, Union County. Plaintiff cross-appeals from the order entered on defendants' post-trial motions for involuntary [190 NJSuper Page 106] dismissal, judgments notwithstanding the verdict, new trials and remittiturs and plaintiff's post-trial motion for counsel fees and costs. On these post-trial motions the court by order of May 28, 1981 ruled that defendants' motions for new trials would be granted unless plaintiff accepted a remittitur to $50,000, interest and costs, from the verdict of $100,000 for compensatory damages awarded the estate of Harold Brehm, denied plaintiff counsel fees and costs and struck her cause of action under the Nursing Home Bill of Rights, N.J.S.A. 30:13-1 et seq.*fn1 A prevailing litigant under that statute is entitled to recover reasonable attorney's fees and costs. N.J.S.A. 30:13-8. In this action the jury found defendants Pine Acres and Liu liable for the $100,000 in damages to the estate of Harold Brehm and equally apportioned the damages between these two defendants. The jury further found all three defendants liable to plaintiff Bernadette Brehm individually for causing her to suffer emotional distress. Her damages were fixed by the jury at $65,000, apportioned 40% each to Pine Acres and Liu and 20% to Perlstein. Plaintiff accepted the remittitur and thus on June 15, 1981 the trial judge entered an amended order of judgment for $50,000 to plaintiff as executrix of the estate of Harold Brehm and $65,000 to her individually. The judgment further provided for apportionment of liability among defendants in accordance
with the verdict and for interest and costs.*fn2 Defendants then filed separate appeals which we consolidated by our order of October 19, 1982.
After a careful review of this matter we have concluded that there were three errors in the proceedings in the trial court requiring reversal by this court. The trial court erroneously granted defendants' post-trial motions to strike plaintiff's action under the Nursing Home Bill of Rights and erroneously ordered a new trial on the damages to the estate of Harold Brehm unless plaintiff accepted a remittitur to $50,000. We further hold that the trial court should have granted defendants' post-trial motions to the extent of entering judgment in their favor dismissing the claim of Bernadette Brehm for emotional distress. We deal with these issues seriatim.
The trial judge in striking plaintiff's action under the Nursing Home Bill of Rights pointed out that Harold Brehm had been transferred to Greystone on the basis of a certification by Liu pursuant to N.J.S.A. 30:4-46.1. He indicated that N.J.S.A. 30:4-46.1 had not been expressly or impliedly repealed by the later-enacted Nursing Home Bill of Rights. He thus considered that since the transfer was not pursuant to the Nursing Home Bill of Rights, the procedural protections of a nursing home resident under N.J.S.A. 30:13-6 before transfer did not become implicated in this case.
N.J.S.A. 30:4-46.1 provides that a person suffering from a mental or nervous illness or from a psychosis caused by drugs or alcohol which renders him or her incapable of executing a voluntary application for admission to an institution maintained by the State or a county or a municipality treating such illness may, upon certificate of a duly licensed physician of this State in a form approved by the Department of Institutions and Agencies*fn3
and in the discretion of the chief executive or other officer in charge of the institution, be admitted to it for observation for a period not exceeding seven days exclusive of Saturdays, Sundays and holidays. If the person is to be longer detained, formal commitment proceedings are required. N.J.S.A. 30:4-46.1 is derived from L. 1953, c. 418 and became effective September 18, 1953.
Under the Nursing Home Bill of Rights, effective November 30, 1976, it is provided that "[w]hen a transfer or discharge on a nonemergency basis of a resident is requested by a nursing home, the resident or, in the case of an adjudicated mental incompetent resident, the guardian, shall be given at least 30 days advance notice of such transfer or discharge." N.J.S.A. 30:13-6. Here the jury determined that the transfer was on a nonemergent basis. Thus, unless N.J.S.A. 30:13-6 was not applicable to the transfer of Harold Brehm, at least 30 days advance notice of his transfer was required. If N.J.S.A. 30:4-46.1 was properly utilized in this situation of a nonemergent transfer, the intention of the Legislature in enacting N.J.S.A. 30:13-6 was completely frustrated. This court is aware that in some cases residents of nursing homes may be said to be within the class of persons subject to institutional admission for purposes of observation under N.J.S.A. 30:4-46.1. In order to carry out the Legislature's intention in enacting N.J.S.A. 30:13-6 we hold that in nonemergent cases N.J.S.A. 30:4-46.1 may not be used to circumvent the protections of N.J.S.A. 30:13-6.*fn4
We recognize, of course, that Liu is a physician and that the Nursing Home Bill of Rights deals with the responsibilities of nursing homes. N.J.S.A. 30:13-3. Nevertheless, N.J.S.A. 30:13-8 provides that any resident whose rights are violated under the Nursing Home Bill of Rights shall have a cause of
action against "any person committing such violation." Here Liu by improperly executing the certificate under N.J.S.A. 30:4-46.1 participated in the violation of ...