On post trial motions, based on recent decisions of the NJ Appellate Division, a private plaintiff cannot assert a cause of action against a nursing home for failure to comply with statutes, rules and regulations, but only for a violation of the patients’ bill of rights. Most important, juries should be instructed that they cannot award a plaintiff damages for a nursing facility’s violations under the statute and in common law negligence based upon the same injuries or harm to plaintiff. Unless a plaintiff is able to advance separate theories of liability for each cause of action, NJ courts will not permit a plaintiff to obtain a double recovery for the same injuries and harm. This rationale should be applicable to New York nursing home cases as well.
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