Illinois Appellate Court Affirms Allowing Estate to File Physician’s Affidavit Supporting Motion to Reconsider Arbitration in Nursing Home Case

The Estate of Lucille Rigoli sued the owners and operators of a nursing home for negligently causing her wrongful death and suffering before her death. She died on May 10, 2016. The court appointed Michael Rigoli to serve as independent executor of her estate.

On March 13, 2018, Rigoli, as executor, filed a complaint against ManorCare of Oak Lawn (West) and Heartland Employment Services, alleging that they chose not to provide adequate medical care to Lucille Rigoli and thus their decisions led to her fall and the fracture of her hip on March 15, 2016. The lawsuit included separate counts against each defendant for wrongful death and for the pain she suffered before her death under the Probate Act of 1975 (755 ILCS 5/27-6, commonly known as the Survival Act).

The Survival Act of Illinois is found in the Probate Act. Section 27-6 (Actions which survive) states that  in addition to the actions which survive by the common law, the following also survive: …actions to recover damages for an injury to the person(except slander and libel), actions to recover damages for an injury to real or personal property.

The Cook County Circuit Court judge initially granted the nursing home’s motion to compel arbitration. However, on the estate’s motion to reconsider, the trial judge allowed the estate to file the affidavit of a doctor who opined that Lucille Rigoli likely would not have understood the arbitration agreement she signed.

The defendants appealed from the Cook County Circuit Court’s decision to grant the motion to reconsider and denied the motion to compel arbitration. Defendants contest both the decision to allow the belated filing of the doctor’s affidavit and the court’s reliance on the opinion about Lucille Rigoli’s mental condition from a doctor who never met or treated her.

In any event, the Illinois Appellate Court found that the trial court did not abuse its discretion by allowing the late filing of the affidavit. Furthermore, the appeals panel found that the court could rely on the expert opinion concerning her mental condition.

Accordingly, the Illinois Appellate Court affirmed the denial of the motion to compel arbitration. The case would then proceed in the circuit court. The Illinois Nursing Home Care Act would be applied (210 ILCS 45/1-101) in the circuit court proceedings.

Rigoli v. Manor Care of Oak Lawn (West) IL, LLC, 2019 IL App (1st) 191635 (Dec. 16, 2019).

Kreisman Law Offices has been handling nursing home abuse and negligence lawsuits, wrongful death cases, medical malpractice lawsuits and nursing home bed sore lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Melrose Park, Mundelein, Naperville, Wheaton, Orland Park, Arlington Heights, Hoffman Estates, Libertyville, Waukegan, Joliet, Aurora, Chicago (Wicker Park, Bronzeville, Kenwood, Woodlawn, Jefferson Park, Washington Park, Lake Calumet), Winfield, Highwood, Hanover Park, Olympia Fields and Flossmoor, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

Related blog posts:

State Supreme Court Reverses Trial Court’s Order Granting Nursing Facility’s Motion to Compel Arbitration

Appellate Court Reverses, Upholding Nursing Home’s Arbitration Agreement Even with Lack of Clear Statement of Authority

Illinois Appellate Court Reversed Lower Court on Nursing Home Arbitration Clause in Wrongful Death Case