Nursing Home Owed Duty of Care to Resident Being Transported by Van from Dialysis Center

Marjorie Stearns, 89, suffered from dementia. She lived full time in a nursing home. The nursing home records showed that Marjorie had fallen at the nursing home. The nursing home initiated safety measures to protect against any future falls.

This Illinois Appellate case analyzed the legal concept of duty. It described two types of duties: one being the ordinary duty that all persons owe each other to guard against reasonably probable and foreseeable injuries that may arise as a consequence of an act and the second being an affirmative duty to act that arises as a result of a special relationship between one party and another.

In this case, the issue of duty was critical in that it had to be determined whether the ambulance service that was transporting the resident back from her dialysis treatment to the nursing home when she suffered a head injury had a duty to protect her.

On Sept. 1, 2009, Marjorie was transported from the nursing home to the dialysis center by a medi-van. She was seated in a wheelchair, which was secured to the floor of the van. The medi-van driver put a safety belt across Marjorie from the floor of the van to its ceiling and then from her hip to her shoulder. There was no lap belt. Marjorie was told to remain seated but before she could sit down, another vehicle pulled in front of the van. The driver braked abruptly, causing Marjorie to fall over and hit her head. She later died from the injuries she sustained.

Marjorie’s family filed a lawsuit against the nursing home and the owner and operator of the medi-van company. In addition, the family claimed that the nursing home was at least partially responsible for her injuries and resulting death.

It was claimed that the nursing home was aware that Marjorie needed fall protection and it had special knowledge, which put it in a position to ensure that appropriate fall protections had to be in place when it sent her in the van. The nursing home should have sent someone along with Marjorie or made sure the driver knew of her history and the risk associated with transporting her.

The nursing home filed a motion for summary judgment arguing that it owed no duty to protect Marjorie from the risk of injury resulting from her choosing not to remain seated in a transport vehicle off the premises of the nursing home. The trial judge agreed and dismissed the case.

On appeal, the Second District of the Illinois Appellate Court reversed finding that the nursing home did in fact owe Marjorie a duty of care. Whether it breached its duty of care owed to Marjorie was an issue of fact that was to be decided by the fact finder or jury.

The appeals panel analyzed this case by noting that there was often confusion about how to determine a duty. The touchstone of a duty analysis begins by looking at whether the parties stood in a relationship to one another so that a duty was owed.

The court stated that this could be determined by looking to (1) the foreseeability of the injury; (2) the likelihood of injury; (3) the burden of protecting against injury; and (4) the consequences of placing the burden on the defendant.

As stated above, there are two types of duties — one being that of ordinary care owed by all persons to others that may be harmed by an act. Then there is the “special relationship” duty, which does not rely only on an act, but instead requires affirmative actions, such as how a custodian must affirmatively act to protect a ward.

In this case, the nursing home argued that Marjorie’s injury was neither foreseeable nor likely. It argued that imposing upon it a duty to make sure she was safe for travel was too burdensome and that it would disrupt the feasibility and cost-effectiveness of businesses that want to use independent contractors to provide transportation services such as the medi-van.

The appellate court stated that those operating a convalescent home, like those operating private hospitals, are under a duty to exercise reasonable care to avoid injury to patrons. The reasonableness of the care provided should be assessed based on the physical and mental capabilities of the patron.

The court also said that in nursing homes the risk for injury is foreseeable and appropriate precautions should be taken. The nursing home owed a duty to Marjorie either by assessing the factors noted or by looking at the special relationship between the parties.

The panel stated that while there is no specifically recognized “special relationship” between a nursing home and its residents, the relationship is similar to the recognized one between a custodian and a ward.

In the custodian and ward relationship, one voluntarily takes custody of another so as to deprive the other of his normal opportunities of protection. A person who is cognitively and physically impaired depends on the staff of the nursing home to prevent injury. This relationship is sufficiently custodial to give rise to a duty. The nursing home’s suggestion that its duty ended at selecting an appropriate transportation service was too narrow. It conflated duty with breach.

In conclusion, the Illinois Appellate Court found that the nursing home owed a duty to its resident. That duty of care and what it should have done to protect her went to whether it breached its duty. This was a question of fact. Thus, the trial court’s dismissal order was reversed and the case was returned to the trial court for further proceedings.

Stearns v. Ridge Ambulance Service, 2015 IL App (2d) 140908.

Kreisman Law Offices has been handling nursing home abuse cases, medical negligence cases, medical misdiagnosis cases, birth injury cases and cerebral palsy injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Evergreen Park, Elk Grove Village, Blue Island, Calumet Park, Riverdale, Alsip, Chicago Ridge, Hickory Hills, Justice, Bridgeview, Bedford Park, Melrose Park, Maywood Park, Chicago (Logan Square, Polish Village, Portage Park, Jefferson Park, Norwood Park, Edison Park, Edgebrook, Sauganash, Pulaski Park, Rose Hill, Uptown), Western Springs and Wilmette, Ill.

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