Illinois Appellate Court Affirms in Part and Reverses in Part a $4.1 Million Jury Verdict in Wrongful Death, Nursing Home Negligence Lawsuit

Dolores Trendell, 85, was admitted to Clare Oaks for rehabilitation following a fractured ankle.  She suffered from atrial fibrillation, which put her at risk for developing blood clots and suffering strokes and had been taking Coumadin as a blood thinner for years. Trendell was admitted to this nursing home facility on Feb. 23, 2011. Less than a month later, a nurse at Clare Oaks documents that Dr. Percival Bigol, the doctor responsible for managing her medication, spoke to the nurse by phone and ordered the Coumadin discontinued.

The nurse, Christina Martinez, did so and documented the change twice, but chose not to include it in the “physician orders” section of Trendell’s medical chart.

Dr. Bigol denied ever giving the order or being aware of the change at the time. Trendell ceased receiving Coumadin on March 16 and suffered a stroke two weeks later.

She suffered numerous complications from the stroke and died nearly a year later. Her estate filed a lawsuit in the Circuit Court of Cook County against Clare Oaks, Dr. Bigol and others related to the facility’s care and treatment of Trendell. The estate alleged violations of the Illinois Nursing Home Care Act, common law negligence and wrongful death.

At trial, the jury signed a verdict in favor of the estate for a little more than $4.1 million, the largest verdict ever brought under the Illinois Nursing Home Care Act, including $250,000 to Trendell’s children under the Illinois Wrongful Death Act.

After the trial, the estate moved to recover attorney fees from Clare Oaks, seeking to receive the contracted amount:  a contingency fee of 1/3 of the award, or more than $1.3 million.

Clare Oaks objected to that fee petition, but the trial court found the fee award appropriate.  Clare Oaks appealed, arguing that the trial court abused its discretion in not allowing a trial continuance, allowing inflammatory rhetoric from the plaintiff’s counsel, admitting certain expert testimony and precluding certain cross-examinations.

The Illinois Appellate Court found no abuse of discretion, nor did the appellate court find merit in Clare Oaks’s claim that proximate cause was not demonstrated by plaintiffs.

Clare Oaks also objected to the award of attorney fees on multiple grounds, including that there was insufficient evidence that the attorney’s fee was reasonable, that the plaintiffs could not recover fees for damages that were part of the wrongful death claims, that the award should be reduced to reflect claims on which the plaintiffs did not succeed and that recovery of fees is limited to the ways enumerated in Section 5-108 of the Illinois Code of Civil Procedure.

The Illinois Appellate Court largely disagreed. The appellate panel noted that the trial court held an evidentiary hearing, examined some records of attorney hours and considered other relevant factors aside from the contingency agreement in determining if the attorney’s fee requested was reasonable, considering the skill and standing of the plaintiffs’ attorneys.

However, the appellate court agreed that attorney’s fees cannot be recovered for the $200,000 awarded under the Illinois Wrongful Death Act and so reversed and remanded with instructions to redetermine the attorney’s fees based on the remaining $3.8 million in damages assigned under the act.

The appellate court therefore affirmed in part, reversed in part and remanded the case back to the circuit court for further consideration.

Susan Grauer and Thomas Trendell v. Clare Oaks, et al., 2019 IL App (1st) 180835-U (Sept. 3, 2019).

Kreisman Law Offices has been handling nursing home abuse lawsuits, nursing home negligence cases, physician negligence lawsuits and wrongful death cases for individuals, families and loved ones who have been injured, harmed or killed by 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, Forest Park, Crestwood, Inverness, Itasca, Lincolnwood, Olympia Fields, Orland Park, Villa Park, Lombard, Wheaton, Carol Stream, Bloomingdale, Medina, Elk Grove Village, Downers Grove, Willowbrook, Wood Ridge, Romeoville, Lemont, Tinley Park, Country Club Hills, Markham, Hazel Crest, Flossmoor, South Holland, Matteson, Richton Park, Chicago Heights, Mokena, New Lenox, Hickory Hills, Franklin Park, Schiller Park, Arlington Heights, Waukegan, Zion, Mundelein, Bannockburn, Northfield, Highland Park, Chicago (Jefferson Park, Portage Park, Wicker Park, Lincoln Park, Old Town, Near North Side, Little Italy, Chinatown, Douglas, Kenwood, Woodlawn, Avalon Park, Calumet Heights, West Lawn, Gage Park, Archer Heights, Garfield Ridge), Stickney, River Forest, Stone Park and Rosemont, Ill.

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