Articles Posted in Nursing Home Negligence

Any type of accident is traumatizing and painful for the victim and his or her family, but there are few things more devastating than losing a loved one as a result of someone else’s carelessness. At Therman Law Offices, our seasoned Chicago wrongful death lawyers have assisted grieving families with bringing wrongful death claims in a variety of accident types. There are many procedural issues that can arise in a wrongful death claim. A recent wrongful death action demonstrates some of these legal and procedural difficulties.

In the action, a woman signed a residency agreement with a nursing home facility. The agreement included a term stating that any disputes arising from the agreement must be resolved through binding arbitration instead of in a civil action. The woman eventually experienced a number of medical events, including diabetic shock that led to a diabetic coma. The woman was later transferred to a nearby hospital, where she tragically died.

The administrator of the woman’s estate filed a wrongful death action against the facility, alleging that the facility was negligent in its treatment and care of the woman and that her estate was entitled to damages as a result. The plaintiff sought damages pursuant to Illinois’ wrongful death statute in addition to the Rights of Married Persons Act and the Survival Act. In response to the complaint, the defendant filed a motion to dismiss, stating that the residence agreement that the decedent signed required the court to dismiss the complaint and to direct the parties to binding arbitration. The plaintiff argued that the arbitration clause was unenforceable, but should the court enforce it, the wrongful death claim should be allowed to proceed in civil court concurrently with the arbitration proceeding on the other claims. In response, the defendant requested a stay of the wrongful death claim, pending the outcome of the arbitration procedure. The lower court denied the defendant’s request and entered an order allowing the wrongful death claim to proceed alongside the arbitration proceeding.

In a recent United States Supreme Court case, the highest court in the nation issued a ruling that has significant consequences for lawsuits involving nursing home abuse and injuries. In Kindred Nursing Centers v. Clark, the Supreme Court concluded that state courts cannot implement laws that single out arbitration agreements in a manner that results in negative treatment.

The facts of the underlying lawsuit are as follows. Two nursing home residents executed a power of attorney for their respective relatives. When each nursing home resident initially moved to the nursing home, the relative executed an arbitration agreement on behalf of the resident. Some time thereafter, each resident passed away, and the relatives each brought a wrongful death lawsuit against the nursing home, alleging that the resident’s death was a result of negligence. In response to the lawsuits, the nursing home moved to enforce the arbitration agreements.

Since the incidents occurred in Kentucky, the lawsuit initially proceeded through the Kentucky state court system and eventually reached the Kentucky Supreme Court. That court concluded that the relatives could not execute the arbitration agreements on behalf of the residents because the residents did not expressly authorize the relatives to enter into the arbitration agreements. The court concluded that the arbitration agreements could not be enforced because an individual must specifically and unequivocally waive his or her right to a jury trial under the Constitution.

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According to recent reports, a 52-year-old woman lost her life at a nursing home following a nursing assistant’s refusal to provide resuscitation and care. According to the records, the woman had not signed a DNR, or Do Not Resuscitate order. This is a legal document that instructs a medical facility to not engage in certain resuscitation methods in the event that the signor becomes incapacitated. If the patient has not signed a DNR, the presumption is that the medical staff should exercise all available methods to resuscitate the patient.

The background of the incident is as follows. The patient was staying at the nursing home facility, located in Highland Park, Illinois, following a recent bout of pneumonia. The patient intended to stay at the nursing home for only a few weeks while she received physical therapy and other recuperative care. The patient had a number of conditions that complicated her recovery, including kidney failure and diabetes.

During her stay, the patient suffered from a bacterial infection known as Elizabethkingia. At one point, the patient coded, which means her heart ceased beating. A nursing assistant who was present referred to the patient’s file but misread the information and falsely believed that the patient had executed a DNR agreement. Based on this false reading of the patient’s chart, the nursing assistant did not call for help or notify any other medical staff members that the patient had coded. After 30 minutes, a staff member realized that the nursing assistant had misread the patient’s file and promptly called 911. Unfortunately, the patient had already passed and could not be revived.

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In a recent case from the Illinois Court of Appeals, Second District, the court was faced with deciding whether documents produced by a nursing home facility were discoverable in a lawsuit alleging that the decedent suffered injuries while in the defendant’s care. The facts of the case were as follows. The plaintiff filed a complaint on behalf of the decedent, alleging that the decedent suffered injuries as a result of a fall while in the care of the defendant. As part of the litigation process, the plaintiff served discovery requests on the defendant, seeking all of the reports created regarding the fall incident. The defendant refused to produce these reports, claiming that they were privileged according to the Quality Assurance Act and the Medical Studies Act because the reports were “prepared for the Facility’s Quality Assurance Committee.”

In response to the denial, the plaintiff filed a motion to compel the defendant to produce the reports. In the motion, the plaintiff argued that the reports were not prepared for the purpose of quality control and that they were not prepared by an internal quality control committee. The defendant opposed the motion and offered a copy of the reports to the judge presiding over the matter for an in camera review. In this process, only the judge is able to review the sought-after documents so that he or she can determine whether the production of the documents would result in some harm or prejudice to the producing party.

The defendant also provided an affidavit from one of the defendant’s employees who was working at the time the defendant fell. The affidavit claimed that the reports were prepared for quality assurance purposes.

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