Articles Posted in Illinois Nursing Home Care Act

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On March 1, 2013, Ann Sanders entered into a residence agreement with the defendant, Victory Centre of Melrose Park, SLF Inc., a licensed supportive living facility. Pursuant to an addendum to the residence agreement, the parties agreed that all claims arising out of that agreement, including those of malpractice, could not be brought in a court of law but would be submitted to binding arbitration.

Later, Sanders, who had diabetes, suffered a diabetic shock and lapsed into a diabetic coma. She was then taken to Gottlieb Hospital in Melrose Park, Ill., where she died on May 21, 2013.

Exactly two years after her death, a lawsuit was filed against Victory Centre of Melrose Park, SLF Inc. alleging negligence and seeking damages in connection with her death. In the complaint, the plaintiff alleged that Sanders’s death was due to the negligence of the nursing home. The lawsuit sought compensation for wrongful death under that statute, the Rights of Married Persons Act (commonly known as the Family Expense Act) and the Survival Act.

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Livija Cruse, an 80-year-old woman who suffered from mild dementia, was admitted to Chicago’s GlenCrest Healthcare and Rehab Center after falling at her home. She was also immobile. Over an 8-week period, she developed a bed sore on her buttocks. Because of the bed sore, she underwent two debridements and nine months of at-home wound treatment care after her discharge from GlenCrest.

On behalf of Cruse, her attorney-in-fact sued the nursing home and the ownership entities claiming that these defendants chose not to prevent and treat the bed sore.  It was also maintained that the nursing home failed to keep her clean and dry, provide her with an appropriate mattress for her condition and place a cushion on her wheelchair. In addition, the lawsuit argued that the nursing home chose not to comply with a doctor’s order regarding her wheelchair.

The defendants countered these arguments that the facility had in fact provided the appropriate care. Before trial, the parties settled for $100,000.

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There has been a recent uptick in claims and lawsuits brought by nursing home and long-term residents, families and loved ones against nursing homes and their ownership for injuries to residents because of the way they are assisted or not assisted depending on a resident’s dietary needs.

For example, many residents on entry to a nursing home are carefully screened for falls, bed sores, medication and are otherwise admitted to a nursing home after a reasonably careful and prudent screening process.

However, in many cases, the issue of a resident’s disability may be relevant in how he or she is able to eat and digest food.

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Meadowbrook Manor Nursing Home invoked the Quality Assurance Act in a case i which Jannie Lindsey, as plenary guardian for 88-year-old Laura Lindsey, alleged that Lindsey was injured by a fall while she was a resident at Meadowbrook’s Naperville Nursing Home.

The Illinois Appellate Court was presented with a case of first impression under the Quality Assurance Act (Long-Term Care Peer Review and Quality Assessment and Assurance Protection Act; 745 ILCS 55/1 et seq.)

In this case, Meadowbrook Manor used a contempt sanction to question the validity of a discovery order that commanded it to handle (1) an internal report it prepared after Lindsey fell and (2) written statements from six witnesses.

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In an Illinois Senate bill sponsored by Sen. Tom Cullerton, D-Villa Park, the law would create a “resident’s representative” for Illinois nursing home residents.  The law would amend the Nursing Home Care Act, changing Section 1-123 (210 ILCS 45/1).

This law — should it be enacted — would allow a nursing home resident to choose someone to support the resident in decision-making, access medical, social, or other personal information of the resident, manage financial matters or receive notifications.

The law would also include the following:  (1) an individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making; access medical, social or other personal information of the resident; manage financial matters; or receive notifications; (2) a person authorized by state or federal law, including, but not limited to, agents under power of attorney, representative payees, and other fiduciaries, to act on behalf of the resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications.  (3) a legal representative, as used in Section 712 of the federal Older Americans Act (42 U.S.C. 3058g); or (4) the court-appointed guardian or conservator of a resident. Nothing in this definition is intended to expand the scope of authority of any resident’s representative beyond that authority specifically authorized by the resident, state or federal law, or a court of competent jurisdiction.

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Arbitration clauses commanding arbitration in nursing home abuse and neglect cases have been the bane of many lawyers seeking to protect nursing home residents from abuse and injury. Under the Illinois Nursing Home Care Act, arbitration clauses were considered to undermine the purpose of the act by making it mandatory for residents and their families to abide by a confusing nursing home contract on admission to a nursing home.

The Illinois Nursing Home Care Act was intended to protect residents from exploitation by nursing homes and their parent corporations. It would seem to be against Illinois public policy for residents admitted to Illinois nursing homes to be compelled to sign a contract. In some cases, these contracts contained arbitration clauses that would essentially remove a common law lawsuit as an option should the resident be injured by neglect or abuse by a nursing home and its personnel.

The Centers for Medicare and Medicaid Services (CMS) implemented a new rule that prohibited federal funds for nursing homes that enter into binding arbitration agreements with residents. However, in a U.S. District Court in the Northern District of Mississippi, an order was entered that found that the CMS did not have authority to enact the mandate without statutory authority.

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Contaminated syringes have been associated with the outbreak of bacteria that infected nearly 150 people since August 2016. Fifty-two of those cases were in New Jersey. According to the Centers for Disease Control (CDC), “the majority of these cases occurred in patients residing at long-term care or rehabilitation facilities who were receiving intravenous (IV) fluids and/or antibiotics through central venous catheters.”

The outbreak of the bacteria from the IV syringes may be linked to six deaths in New York and Pennsylvania. Of the 58 total nursing home facilities that had been affected, the most were located in New York, New Jersey and Pennsylvania. There were several reports of similar outbreaks in Delaware and Maryland.

The bacteria is usually referred to B. cepacia. In most cases, the infections were caused by a pre-filled saline flush syringe, which the manufacturer voluntarily recalled on Oct. 4, 2016. The CDC announced on Nov. 9, 2016 that all nursing homes and other medical facilities should stop using the items, sequester any items in the facility and report all infections to local and state health authorities.

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Violet Moseson, a 97-year-old resident of an assisted living facility, was mandated to be checked on every morning. The facility was to perform safety checks each morning for this resident and others. At the time of this occurrence, the electronic system through which the facility was supposed to communicate with Moseson was not turned on in her apartment when she moved in.

A week later, Moseson fell in her apartment at night. It was alleged that she spent the next 2-3 days trying to get help. There was a trail of blood and excrement in her apartment when a family member found her lying on the floor. Because of the severity of the fall, Moseson suffered spinal fractures, contusions as well as progressive dementia. Moseson died several months later and is survived by her two adult sons.

The decedent’s estate and family brought a claim that was arbitrated against the assisted living facility. It was maintained that the facility chose not to check on Moseson every 24 hours and chose not to activate the call system in her apartment. The defendant facility disputed the length of time that Moseson had been left in the apartment after her fall and countered that she was at fault for failing to purchase an emergency pendant. Many elderly people wear a pendant around their necks for emergencies. The pendant has a call button that alerts a switch board that then contacts family members.

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Ms. Doe, 78, suffered from blindness and mild dementia. Her nursing home care plan called for her to receive assistance from at least two people during any type of physical transfer. This would mean transfer from her bed or transfer from a chair or a transfer from her wheelchair. Nonetheless, only one nursing home aide assisted Ms. Doe when transferring her to the toilet. Under these circumstances, Ms. Doe fell and fractured her left tibia and fibula. She died six days later as a result of her injuries. Ms. Doe was survived by her two adult sons.

Ms. Doe’s family sued the nursing home claiming it chose not provide adequate transfer assistance, which led to her fall and unfortunate passing. The defendant nursing home argued that Ms. Doe’s death resulted from her underlying medical conditions, not from her fall. Before trial, the case was settled for $325,000 confidentially.

The attorney representing the Doe family was Brett R. Leitner.

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Sophia Alcon, 77, was admitted to Life Care Center of Pueblo, a skilled nursing facility. During the 7 months that she remained there, she suffered various injuries and illnesses, including urinary tract infections, bed sores, dehydration, malnutrition, pain, renal failure and aspiration pneumonia. She was brought to a nearby hospital where a staff medical provider noticed that her vagina was packed with dried feces. She died as a result of her medical conditions and is survived by her 10 adult children.

One of her sons, on her behalf and for the family, sued the nursing home and its corporate affiliates maintaining that they were responsible for her death. In the complaint it was alleged that the nursing home was negligent, was responsible for her wrongful death and was guilty of numerous consumer protection violations. Among other things, the Alcon family alleged that the defendants chose not to properly assess Sophia’s medical needs, formulate an appropriate care plan, provide adequate staffing and properly trained personnel at this skilled nursing facility.

The jury’s verdict of $5.56 million, included $5 million in punitive damages, which are designed to punish the defendants for the abusive treatment to Sophia Alcon.

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