Illinois Appellate Court Finds Arbitration Clause Inapplicable in Nursing Home Wrongful Death Lawsuit

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.

In October 2017, Kathy executed a 13-page admission agreement on behalf of Jefferson detailing the rights and obligations of each party during her residency. She signed a separately paginated arbitration agreement on the same date. The document provided that any claims would be handled through arbitration with some exceptions.

The arbitration agreement also provided that arbitration is mandated for various claims under the Illinois Survival Act. Parker’s complaint alleged that Jefferson was at “high risk for the development and deterioration of pressure sores.” She alleged that Symphony of Evanston chose not to provide appropriate care for this condition and that Maestro negligently failed “to provide appropriate care and supervision to prevent pressure sores from developing, worsening, and becoming infected.”

The complaint alleged that, as a result, Jefferson experienced deterioration of a physical, mental and psychosocial condition and unnecessary pain and suffering that caused and contributed to her death in January 2020.

Symphony moved to dismiss and compel arbitration of Parker’s survival claim and to stay the wrongful death claims pending arbitration. The trial judge granted the motion. Parker appealed, arguing that Kathy’s authority to bind Jefferson to arbitration was optional and not a condition to admission.

In the appellate panel’s opinion, the court wrote that the arbitration agreement is “both optional and freestanding.” The court said that the arbitration agreement was separately paginated and signed from the admission agreement and that it was not “reasonably necessary” for Kathy to sign the arbitration agreement to make a health care decision on behalf of Jefferson.

It was further noted at the deposition of the person who signed the admission and arbitration agreement as Symphony’s representative and testified that “the arbitration agreement was optional, and about 85% of residents refuse to sign it.” Accordingly, the appellate court reversed the trial court’s order dismissing and compelling arbitration of Parker’s Survival Act claim and staying her wrongful death claims pending resolution of arbitration. The case was remanded back to the circuit court for furth disposition.

Parker v. Symphony of Evanston Healthcare, 2023 IL App (1^st) 220391.

Kreisman Law Offices has been handling nursing home abuse cases, cases involving the Illinois Nursing Home Care Act, wrongful death lawsuits, nursing home bed sore lawsuits, and medical malpractice cases 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 45 years in and around Chicago, Cook County and its surrounding areas, including Arlington Heights, Bellwood, Calumet City, Deerfield, Evanston, Flossmoor, Gurnee, Homewood, Inverness, Joliet, Bolingbrook, Kenilworth, Chicago (Logan Square, North Lawndale, East Garfield Park, Jackson Park, Washington Park, River North, Old Town Triangle, Portage Park, Austin, Canaryville, Hegewisch), Lisle, Morton Grove, Des Plaines, and Hinsdale, Ill.

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