Illinois Appellate Court Returns Nursing Home-Arbitration Case Back for Discovery on Severable Issues in the Wrongful Death Portion of Case

In this case, the plaintiff, Merton Messmore, brought a wrongful-death claim against the nursing home in Silvis, Ill., which is about 161 miles west of Chicago. Messmore’s wife, Mary, died after she allegedly fell.

The Illinois Appellate Court called this case “a unique situation” about a stay under Section 2(d) of the Uniform Arbitration Act because the survival claims Messmore filed on behalf of Mary’s estate “are subject to arbitration, his wrongful-death claim is not, and he bases all three claims on the same factual allegations.”

Messmore wanted to proceed in the circuit court but discovery on the wrongful-death claim included taking his evidence deposition (Messmore is at least 90.) without having to wait for arbitration of the survival claims. The defendants, Silvis Operations d/b/a Lighthouse of Silvis and one of its nurses, argued that Section 2(d) required the trial judge to stay all three claims.

According to Section 2(d), “any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under the section or, if the issue is severable with respect thereto only.”

On appeal from an order that denied the defendants’ motion for a stay on the wrongful-death claim, “The parties dispute whether Section 2(d) required the court to stay the wrongful-death case proceedings as a matter of law.”

Concluding “that Section 2(d) unambiguously requires the trial court to stay all issues subject to the survival claims’ arbitration,” including issues “regarding defendants’ negligence” – and that the trial judge also has discretion to stay “severable issues,” such as “proximate cause and damages issues” in the wrongful-death case – the Third District Appellate Court remanded with instructions that “the court may allow discovery (including plaintiff’s deposition) on the severable proximate cause and damages issue in the wrongful death case.”

In the underlying lawsuit, it was alleged that Lighthouse employees knew that Mary suffered from “left-sided paralysis due to a recent stroke, degenerative joint disease, atrial fibrillation, hypertension and was a fall risk.”

According to the facts of the case, she sustained two falls during her residency. After her second fall on Dec. 1, 2014, Lighthouse employees found her with a “goose egg-sized” hematoma on the left side of her forehead, facial bruising and an abrasion on her left knee.

Lighthouse sent her to Trinity Hospital on Dec. 3, 2014. Doctors diagnosed her with a subdural hematoma and facial bruising. The hospital discharged her to Lighthouse on Dec. 5, 2014. Lighthouse discharged her on Dec. 13, 2014. She died on Jan. 8, 2015.

Both counts in the lawsuit complaint alleged survival claims under the Probate Act of 1975.

The plaintiff’s complaint claimed that the defendants were negligent in their care and negligently supervised Mary. Their negligence “directly and proximately caused” her injuries “and resulted in Mary experiencing injuries, pain and suffering.”

The defendants moved to dismiss the complaint. The defendants’ motion sought to compel mandatory mediation and, if necessary, arbitration of plaintiff’s survival claims pursuant to Lighthouse’s resident agreement.

On Aug. 1, 2016, the trial judge granted defendants’ motion. After that, the plaintiff filed an amended complaint and added a wrongful-death claim against Silvis. The amended complaint explicitly alleged “facts common to all counts” to support all three causes of action.

The “facts common all counts” substantially restated the facts alleged in plaintiff’s initial complaint. The wrongful-death claim adopted the survival claims’ negligence allegations, but alleged defendants’ negligence proximately caused Mary’s death (rather than her injuries) and caused her “lineal next-of-kin” (rather than Mary) to suffer “a loss of companionship and society, grief, sorrow and mental suffering.”

Her husband filed an interlocutory appeal to challenge the trial judge’s order dismissing the survival claims and compelling arbitration.

The defendants filed a motion to stay the wrongful-death proceedings pending resolution to the survival claims’ arbitration. The court denied defendants’ motion and this appeal followed.

According to the opinion of the appellate court case, the Uniform Arbitration Act Section 2(d) was found to be unambiguous requiring the trial court to stay all issues subject to the survival claims’ arbitration. The remaining question in the case was whether the plaintiff’s wrongful-death case includes issues subject to the survival claims’ arbitration.

Because survival action cases and wrongful-death cases require plaintiff to prove different elements, it was stated that wrongful-death claims accrue when the decedent’s death is “caused by wrongful act, neglect or default” that subjects the acting party to liability. 740 ILCS 180/1.

Plaintiff’s amended complaint alleges that the same negligent conduct caused Mary’s injuries and her death. To prevail on any of Messmore’s claims, he must prove that defendants’ conduct breached their duty of care to Mary. This issue is not severable.  Section 2(d) of the Uniform Arbitration Act therefore requires the trial court to stay any proceedings regarding defendants’ negligence in plaintiff’s wrongful-death case, pending the result of their survival claims’ arbitration.

This requirement also means that plaintiff’s wrongful-death case may not proceed to trial before the survival claims’ arbitration concludes; neither the court nor the jury can decide the case without considering the negligence element.

Given Messmore’s advanced age, on remand, the court may allow discovery (including plaintiff’s deposition) on the severable proximate cause and damages issues in the wrongful-death case. The other parts of the wrongful-death claim are also stayed with the survival action.

Messmore v. Silvis Operations, LLC, 2018 IL App (3d) 170708 (April 26, 2018).

Kreisman Law Offices has been handling nursing home abuse and negligence lawsuits, wrongful death cases and nursing home negligence lawsuits for individuals, families and loved ones who have been injured, harmed or died as a result of carelessness or negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Midlothian, New Lenox, Northlake, Northfield, Northbrook, Glenview, Glencoe, Chicago (Rogers Park, Albany Park, Jefferson Park, Washington Park, South Shore, Hegewisch, South Loop), Arlington Heights, Orland Park, Inverness, Itasca, Long Grove and Wilmette, Ill.

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