Articles Posted in Long-Term Care Facilities

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The Illinois Appellate Court held that an Evanston long-term care facility would have to face a wrongful death trial in court rather than by arbitration. The panel ruled that the facility’s arbitration agreement was optional and therefore unenforceable. One of the appellate court justices concurred, writing that such agreements are financially motivated.

Cheryl Parker sued Symphony of Evanston Healthcare LLC and Maestro Consulting Services LLC, alleging violations of the Illinois Nursing Home Care Act and common-law negligence under the Survival Act and Wrongful Death Act.

Parker sued in the Circuit Court of Cook County on behalf of Mae Jefferson, a Symphony of Evanston resident. Jefferson designated her daughter Kathy as her agent in an Illinois statutory short form power of attorney for health care.

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Colvin Towns was admitted to the Camden Nursing Facility in 2008. He suffered from many and various health conditions, including congestive heart failure, bowel and bladder issues, cognitive loss and diabetes.

In 2016, he was sent to a hospital emergency department, where he was diagnosed with having nursing home-acquired pneumonia, respiratory failure and septic shock. Towns, who was in his 60s, died eight days after that hospitalization. He was survived by his two adult children.

Towns’s estate sued the nursing home, alleging that it chose not to provide sufficient staff and failed to implement an adequate care plan. The lawsuit maintained that the nursing home defendant failed to respond to Towns’s needs, including keeping him safe and free from developing pneumonia.

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Clementine Leonard was a resident of Symphony Jackson Square LLC, which is a long-term care nursing facility. The facility is governed by the Illinois Nursing Home Care Act. She was a resident from Feb. 27, 2016 through June 10, 2016.  Symphony was managed and operated by Maestro Consulting Services LLC.

On Feb. 7, 2019, Marilyn Herns, as the court-appointed guardian of Leonard’s estate, filed a lawsuit against Symphony Jackson Square, Maestro and Norwegian American Hospital Inc., which was not a party to this appeal.

The lawsuit alleged violations of the Illinois Nursing Home Care Act and negligent mistreatment that led to multiple pressure sores as well as an allegation of common law negligence brought against Maestro. The defendants moved to compel arbitration based on a healthcare arbitration agreement that Herns signed along with the admissions paperwork when Leonard was admitted, and to dismiss based on the two-year statute of limitations as for negligence.

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Doe, 62, suffered from developmental delays and schizophrenia and lived at Roe Residential Care Facility. While Doe was there, he suffered a vicious beating from his roommate, resulting in a fractured left femur, four broken bones, a broken left clavicle and a collapsed lung. There were other injuries as well.

Doe remained in the hospital’s intensive care unit for two weeks after this occurrence. He was later transferred to a skilled nursing facility for two months.

Doe sued the residential care facility alleging that it knew or should have known that Doe’s roommate was not an appropriate candidate for admission due to the roommate’s tendencies toward violence. Doe further claimed that the defendant residential care facility, Roe Facility, chose not to follow the applicable regulations for its admission and retention of the roommate.

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Jane Holloway was an employee of Oakridge Convalescent Home on Feb. 7, 2011. She filed a charge of discrimination in violation of the Illinois Human Rights Act (775 ILCS 5/1-101 et seq.) against Oakridge Nursing & Rehab Center LLC (“Oakridge Center”) who was the employer and the managing company of Oakridge Convalescent Home.

Oakridge Center received notice of the charge in the spring of 2011 and transferred substantially all of its assets for no consideration to Oakridge Healthcare Center, LLC (“Oakridge Healthcare”). Oakridge Healthcare became the new manager of Oakridge Convalescent Home. Holloway subsequently obtained an administrative judgment of $30,880.  When Oakridge Center chose not to satisfy the judgment, the State of Illinois filed a complaint against Oakridge Healthcare, as the successor of Oakridge Center to enforce compliance with Holloway’s judgment.

Oakridge Healthcare filed a motion for summary judgment; the circuit court granted it. The State of Illinois appealed and argued that it presented sufficient evidence to create material issue of fact that Oakridge Center transferred its assets for the fraudulent purpose of escaping Holloway’s judgment.

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A watchdog report released recently called for new focus on protecting nursing home patients. The report shows that nursing home facilities have regularly chosen not to report thousands of serious cases of potential neglect and abuse of seniors who receive their health care through Medicare even though it is a federal requirement for them to report.

Auditors with the U.S. Health and Human Services Inspector’s General Office drilled down on episodes that were serious enough that the patient was taken straight from the nursing home to a hospital emergency room.

The data that revealed this alarming reality was done by scouring Medicare billing records. It was estimated that in 2016, about 6,600 cases of potential neglect or abuse were not reported as required. Nearly 6,200 patients were affected.

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A Kentucky appellate court has held that a nursing home arbitration agreement without specific language allowing an attorney-in-fact to waive a resident’s right to a jury trial was enforceable because of a recent U.S. Supreme Court decision.

In reversing the trial court’s denial of the defendant’s motion to compel arbitration, the appeals panel turned to the U.S. Supreme Court case of Kindred Nursing Centers v. Clark, 137 S.Ct. 1421 (2017). In the Kindred Nursing Centers case, the Supreme Court held that the Federal Arbitration Act preempts the state’s “clear statement rule,” which requires a power of attorney to contain an explicit authorization before an attorney-in-fact may waive a principal’s constitutional right to a jury trial. It was held that this case is substantively similar to the Kindred case.

In the underlying lawsuit, Jamie Free was admitted to Regis Woods Care and Rehabilitation Center, a long-term care facility. As she was being admitted, Jamie’s daughter, Reyetta Smith, signed an arbitration agreement in her individual and representative capacity. Smith later sued the facility and others claiming common law and statutory violations. The defendant moved to compel arbitration. The trial judge denied the motion on the basis that the power of attorney did not grant Smith express authority to sign the arbitration agreement on her mother’s behalf.

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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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Jovan Hinich was 28 years old and suffered from a neurological disorder that limited his mental capacity to that of a toddler. He lived at Next Step in Community Living facility, where his care plan required him to be supervised while eating and for his food to be cut into bite-sized pieces due to his tendency to eat quickly and swallow food without chewing it.

While he was traveling by van to his day program at the Milwaukee Center for Independence (MCFI), he was allowed to access his lunch, including a sandwich. After arriving at MCFI, Hinich collapsed from an obstructed airway. Part of the sandwich was later removed from his throat.

Hinich suffered cardiopulmonary arrest, which resulted in severe brain damage.  He now resides at a facility for those with brain injuries.

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A Louisiana State Appellate Court has held that the automobile policy exclusion in a long-term care and general liability insurance policy applied to claims barred on behalf of a patient who fell from a van’s wheelchair lift.

In this case, Shirley Ann Marzell, who was a patient at the Charlyn Rehabilitation and Nursing Center, was placed in her wheelchair onto the lift platform of the facility’s van. When her assistant moved away from her, Marzell’s weight shifted and the wheelchair rolled off the platform. She struck her head on the pavement. Marzell and her two daughters filed suit against American Safety & Indemnity Co., the insurance company that insured Charlyn Enterprises, the owner of the rehab center.

The insurance company moved for summary judgment maintaining that the automobile exclusion in Charlyn’s insurance policy applied to this lawsuit.  That provision stated in part that the insurance policy did not apply to any claim arising out of the use of an automobile, including acts of loading or unloading. The trial judge granted the motion for summary judgment dismissing the case. An appeal was taken.

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