Our office has defended a number of lawsuits by residents against nursing homes. Every lawsuit settled when the insurance company adjuster decided "enough's enough; let's move on to the hundred other files on my desk". Just when is enough enough? Our experience has been when there is sufficient discovery to support a jury's determination of a potential resident's rights violation under the New Jersey Nursing Home law. Why the concern about a violation? Fee shifting! The nursing home potentially would need to pay the resident's attorney's fees. Well, good news - at least for assisted living facilities. 

A federal court in New Jersey recently determined that New Jersey's nursing home law cannot be used as a basis to impose liability for alleged violations of assisted living residents's rights. Nursing home residents may continue to bring lawsuits for violations of  residents' rights under New Jersey's Nursing Home Responsibilities & Rights of Residents Act while trying to obtain compensatory and punitive damages, plus attorney's fees. Assisted living residents can still bring lawsuits against assisted living facilities; however, one of the causes of action no longer can be the Nursing Home Responsibilities & Rights of Residents Act including its potential attorney's fee shifting provision. 

 

 

By: David S. Barmak Esq.

 

Charles Cullen may have been the most prolific serial killer in American history. A former nurse, he is believed by authorities to have killed as many as 400 people, if not more.  Cullen accomplished this in large part by moving from job to job and facility to facility. As a facility would begin to suspect he was responsible for patient deaths, he would leave that position. Previous facilities, unable to confirm their suspicions and concerned about a potential lawsuit for a bad reference, would not share its concerns with potential employers. As a result, Cullen was able to move freely from facility to facility without any negative references.

 

Following his capture in 2003, New Jersey passed the Nurse Cullen Law. The law puts requirements on health care entities to report providers who have acted negligently or incompetently to the State. Additionally, entities must also report to potential employers certain information on the provider's negligence and incompetence.

 

There are specific scenarios in the law that lay out when a provider must make a report. Several professional associations, particularly nursing associations, have raised concerns that the law could  result in inappropriate over-reporting. Health care entities should understand when a report must be made and when it is not necessary. Additionally, it is important to know that the Nurse Cullen Law shields a health care entity from a civil lawsuit from the reported provider for making a good faith Nurse Cullen report to the State or a potential employer.

 

If you have any questions regard Nurse Cullen Law compliance, please contact Brandon Goldberg, Esq. at 609-454-5351 or bgoldberg@barmak.com.

 

 

Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to healthcare organizations.

   

Representative Clients: 

Entities:  Skilled nursing facilities; Home health agencies; Hospice agencies; Hospitals.

 

Providers: Physicians; Therapists; Orthotists and Prosthetists

 

Suppliers:  Durable medical equipment; Long-term care pharmacies; Retail pharmacies.

 

Businesses: Billing; Management service organizations; Independent provider associations

 

Regulatory Issues: Corporate Compliance Programs (Fraud, waste & abuse; Privacy & Data Security; Employment); Healthcare facility; Licensed Professionals; Medicare & Medicaid (certification, survey and reimbursement); Auditing (legal; clinical; administrative; and reimbursement).

 

Transaction Issues: General Counsel Services; Contracts.
          
Employment Issues: Wage and hour; Equal employment opportunity; Discrimination; Whistle-blowing; Employment agreements; Severance packages; Employee release agreements, Non-compete agreements; Non-solicitation agreements; Confidentiality agreements, Employee leave issues, Electronic monitoring and employee privacy, Employee separation (suspensions, terminations and reductions in force); Documentation.

  

Litigation/Advocacy: Contracts; Employment; Fiduciary issues; Commercial leases; Payment (Managed Care Organizations; Medicare; Medicaid); Guardianship; Professional and facility licensing; Healthcare regulatory; Fraud and privacy issues.
  
The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising.

  

This newsletter has been prepared by Barmak and Associates, LLC for informational purposes only and is not intended to provide legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

  

For more information, please contact:

David S. Barmak, Esq.

Telephone (609) 454-5351
Fax (609) 454-5361

www.barmak.com