Nursing Home Litigation

I. OVERVIEW

A. Long-Term Care Statutes and Regulations

1. Illinois Nursing Home Care Act

2. Federal Nursing Home Reform Provisions of OBRA '87

B. Definition of "Long-Term Care Facility"

C. Long-Term Care Management

1. Nursing Home Administrator

2. Director of Nursing

3. Director of Food Services

4. Medical Director

5. Physicians

6. Nursing Staff

7. Social Service

II. PARTIES TO LAWSUIT

A. Plaintiff

B. Defendant

III. CAUSES OF ACTION

A. Theories of Liability

l. NHCA

2. OBRA '87 Provisions

3. Common Law Negligence and the Standard of Care

4. Breach of Contract

5. Consumer Fraud

6. Survival Statute and Wrongful Death Act

7. Negligent Hiring, Supervision, and Retention

8. Healing Art Malpractice

9. Liability

a. Strict Liability

b. Actual Agency

c. Apparent Agency

10. Other Forms of Liability

11. Other Remedies

B. Typical Cases and Defenses

1. Fall Cases

a. Allegations

(1) Failure to assist and attend

(2) Failure to properly use a restraint

(3) Failure to properly use side rails

b. Defenses

2. Injuries Due to Use of Restraints

a. Allegations

b. Defenses

3. Wandering Resident Cases

a. Allegations

b. Defenses

4. Suicide and Attempted Suicide Cases

a. Allegations

b. Defenses

5. Decubitus Ulcer Cases

a. Allegations

b. Defenses

IV. GENERAL DEFENSES

A. Statute of Limitations

B. Compliance

V. INVESTIGATION AND DISCOVERY

A. Securing the Documents and Evidence

l. Medical Records

2. Other Facility Documents

a. The Business File

b. The Policies and Procedures Manual and Index

c. Incident Reports Regarding the Resident

d. Statements

e. Other Documents That Relate to the Resident

f. Staffing Records and Staffing Assignment Calculation Sheets

g. Surveys and Plans of Correction

h. Personnel Files of Key Caregivers

i. Consultants' Reports

j. The Floor Plan

k. Marketing Material

1. Visitor Sign-In Sheets

m Residents' Advisory Council Meeting Minutes

n. Photographs

o. Surveillance Tapes

p. Menus for the Time Period in Question

3. Documents Not in the Control of the Facility

4. Former Employees' Testimony

a. Identifying Key Witnesses

b. Interviewing Former Employees

B. Discovery Tools

1. Document Requests

2. Interrogatories

3. Requests To Admit

4. Notice for Deposition

C. Scope of Defendant's Discovery

D. Other Discovery-Related Issues

1. Informal Discovery

2. Statements

E. Checklist of Information To Be Obtained in Written and Oral Discovery

VI. EXPERT TESTIMONY

A. Explaining the Difference Between Hospital Care and Long-Term Care

B. Explaining the Difference Between Physician Care and Nursing Care

C. Explaining Long-Term Care Facility Charting Practices

D. Explaining the Life Care Plan

VII. CASE EVALUATION AND SETTLEMENT ISSUES

A. Evaluation in General

B. Jury Sympathy

C. Settlement and Release

D. Liens

1. IDPA Liens

2. Medicare Super Liens

E. Attorneys' Fees and Costs

I. OVERVIEW

A. Long-Term Care Statutes and Regulations

Long-term care facilities are governed by both federal and state regulations. In fact, long-term care facilities are subject to more regulations than any other health care institution. The regulations are comprehensive and complex and regulate all forms of care and services provided to a resident. In order to effectively defend a long-term care facility, the defense counsel must be well versed in the applicable regulatory provisions that apply to a long-term care facility. At a minimum, defense counsel should have a strong working knowledge of the Illinois Nursing Home Care Act, 210 ILCS 45/1-101, et seq.; the Illinois Department of Public Health regulations, 77 Ill.Admin. Code, Part 300; and the federal nursing home reform provisions, 42 C.F.R. Part 483.

Other potentially relevant state statutes include the Abused and Neglected Long Term Care Facility Residents Reporting Act, 210 ILCS 30/1, et seq.; Elder Abuse and Neglect Act, 320 ILCS 20/1, et seq.; Long Term Care Peer Review Protection Act, 745 ILCS 55/1, et seq.; medical studies statute, 735 ILCS 5/8-201; Nursing and Advanced Practice Nursing Act, 225 ILCS 65/51, et seq.; and Nursing Home Administrators Licensing and Disciplinary Act, 225 ILCS 70/1, et seq. Other relevant federal statutes and regulations include the Americans with Disabilities Act, 42 U.S.C. §12101, et seq.; Civil Rights Act, 42 U.S.C. §1983; Occupational Safety and Health Act of 1970, 29 U.S.C. §651, et seq.; so-called "Patient Self-Determination Act of 1990," 42 U.S.C. §§ 1395cc and 1396a, passed as part of the Omnibus Budget Reconciliation Act of 1990, Pub.L. No. 101-508, §4206, 104 Stat. 1388; Safe Medical Devices Act of 1990, Pub.L. No. 101629, 104 Stat. 4511; and Title VII, 21 U.S.C. §1701, et seq. Also relevant may be the National Fire Protection Association Life Safety Code (see 77 Ill.Admin. Code §200.906).

1. Illinois Nursing Home Care Act

In 1979, the Illinois legislature enacted the Illinois Nursing Home Reform Act of 1979, Ill.Rev.Stat. (1988), c. 111½, ¶4151-101, et seq., which was amended in 1988 to become the Nursing Home Care Act (NHCA), 210 ILCS 45/1-101, et seq. The legislation, sponsored by Senators Richard M. Daley (D, Chicago) and Lynn Martin (R, Rockford), went into effect March 1, 1980. The NHCA repealed the old Homes for the Ill and Physically Infirm Persons Act, which had been in existence since 1945.

The NHCA provides a legislative scheme that governs the operations of long-term care facilities in Illinois. The NHCA expanded the prior legislation in four major areas: (a) it created a residents' bill of rights; (b) it expanded the enforcement powers of the regulatory agencies enforcing the provisions of the Act, specifically the Illinois Department of Public Health (IDPH); (c) it set forth minimum qualifications for skill levels and training for the nursing assistants and technicians; and (d) it provided policing powers for community groups, relatives, or friends to become involved in monitoring the quality of care provided. The NHCA also extended the enforcement power of the Act to residents by creating a private right of action. The state agency in charge of the enforcement of the NHCA is the IDPH.

2. Federal Nursing Home Reform Provisions of OBRA '87

Federal nursing home reform amendments, sometimes referred to as the "Nursing Home Reform Act," were enacted by Congress as part of the Omnibus Budget Reconciliation Act of 1987 (OBRA '87), Pub.L. No. 100-203, 101 Stat. 1330. 42 U.S.C. §§1395i-3(a) through 1395i3(h) (Medicare), 1396r(a) - 1396r(h) (Medicaid). Unlike the NHCA, the OBRA '87 amendments do not provide a resident with a private right of action. See also Section III.A.2. below.

OBRA '87 and the regulations promulgated thereunder redefined the existing nursing home law by setting forth the following:

a. the requirements for participating in the Medicare and Medicaid program;

b. federal and state compliance procedures; and

c. enforcement mechanisms.

The federal agency in charge of the enforcement of the OBRA '87 regulations is the Centers for Medicare and Medicaid Services (CMS), formerly known as the Health Care Financing Administration (HCFA) of the U.S. Department of Health and Human Services (HHS). The OBRA '87 regulations were implemented on September 26, 1991.

The OBRA '87 regulations, like the NHCA, are numerous and include regulations on all aspects of nursing home care and services provided. They require the nursing home to provide at a minimum for "the highest practicable physical, mental, and psychosocial well-being" of the resident. See 42 C.F.R. §483.25. The OBRA '87 standards can best be summarized by referring to 42 C.F.R. §§483.25(a) - 483.25(m), which address 13 specific aspects of care.

B. Definition of "Long-Term Care Facility"

A "long-term care facility" is defined as

a private home, institution, building, residence, or any other place, whether operated for profit or not, or a county home for the infirm and chronically ill operated pursuant to Division 5-21 or 5-22 of the Counties Code, or any similar institution operated by a political subdivision of the State of Illinois, which provides, through its ownership or management, personal care, sheltered care or nursing for 3 or more persons, not related to the applicant or owner by blood or marriage. 210 ILCS 45/1-113.

210 ILCS 45/1-124 defines "sheltered care" as "maintenance and personal care." 210 ILCS 45/1-116 defines "maintenance" as "food, shelter and laundry services," and 210 ILCS 45/1-120 defines "personal care" as

assistance with meals, dressing, movement, bathing or other personal needs or maintenance, or general supervision and oversight of the physical and mental well being of an individual, who is incapable of maintaining a private, independent residence or who is incapable of managing his person whether or not a guardian has been appointed for such individual.

To fall within the definition of "sheltered care," the facility must provide both maintenance and personal care. The courts have held that a retirement home that provides only food, shelter, and laundry services is not a "facility" as defined by the NHCA. People ex rel. Lumpkin v. Frantz, 306 Ill.App.3d 267, 714 N.E.2d 1068, 239 Ill.Dec. 771 (3d Dist. 1999). The Lumpkin court held that only when food, shelter, and laundry services are combined with "personal care" does a facility become a "sheltered care" facility, thereby coming under the NHCA. Id.

The courts have found that residential institutions with independent living units for individuals who are capable of independent living do not fall under the provisions and protections of the NHCA even when these institutions provide assistance to residents with meals, dressing, movement, bathing, and other personal needs and services. See Grampp v. Friendship Manor of Illinois Branch of Kings Daughters & Sons, Inc., 679 F.Supp. 828 (C.D.Ill. 1988). In Grampp, the resident was in an independent living unit. She received some assistance with meals and housecleaning but was capable of taking care of herself. Therefore, because of her self-sufficiency, the court found that she was not protected by the NHCA because she did not receive "personal care, sheltered care or nursing" as defined by the Act. Id.

The NHCA does not apply to or govern institutions that have their own licensing statutes. The NHCA specifically excludes the following from the definition of "facility":

(1) A home, institution, or other place operated by the federal government or agency thereof, or by the State of Illinois, other than homes, institutions, or other places operated by or under the authority of the Illinois Department of Veterans' Affairs;

(2) A hospital, sanitarium, or other institution whose principal activity or business is the diagnosis, care, and treatment of human illness through the maintenance and operation as organized facilities therefor, which is required to be licensed under the Hospital Licensing Act;

(3) Any "facility for child care" as defined in the Child Care Act of 1969;

(4) Any "Community Living Facility" as defined in the Community Living Facilities Licensing Act;

(5) Any "community residential alternative" as defined in the Community Residential Alternatives Licensing Act;

(6) Any nursing home or sanatorium operated solely by and for persons who rely exclusively upon treatment by spiritual means through prayer, in accordance with the creed or tenets of any well-recognized church or religious denomination. However, such nursing home or sanatorium shall comply with all local laws and rules relating to sanitation and safety;

(7) Any facility licensed by the Department of Human Services as a community-integrated living arrangement as defined in the Community-Integrated Living Arrangements Licensure and Certification Act;

(8) Any "Supportive Residence" licensed under the Supportive Residences Licensing Act;

(9) Any "supportive living facility" in good standing with the demonstration project established under Section 5-5.01a of the Illinois Public Aid Code;

(10) Any assisted living or shared housing establishment licensed under the Assisted and Shared Housing Act; or

(11) An Alzheimer's disease management center alternative health care model licensed under the Alternative Health Care Delivery Act. 210 ILCS 45/1-113.

C. Long-Term Care Management

1. Nursing Home Administrator

The NHCA defines the "administrator" as the person who is charged with the general administration and supervision of the facility. 210 ILCS 45/1-105. All long-term care facilities are required to have a licensed nursing home administrator. 77 Ill.Admin. Code §300.510. Pursuant to the Nursing Home Administrator's Licensing Disciplinary Act, 225 ILCS 70/1, et seq., the administrator is the person who is directly responsible for planning, organizing, directing, and supervising the operations of the nursing home.

2. Director of Nursing

Each skilled nursing facility is required to have a director of nursing services (DON) who is a registered nurse. 77 Ill.Admin. Code §300.1220. Each intermediate care facility is required to have a director of nursing who is either a registered nurse or a licensed practical nurse. Id. The DON is charged with overseeing the nursing services of the facility, including (a) assigning and directing the activities of the nursing service personnel; (b) overseeing the comprehensive assessment of the residents' needs; (c) planning an up-to-date resident health care plan for each resident; (d) recommending to the administrator the number and levels of nursing personnel to be employed; (e) participating in planning for budgeting in nursing services; (f) developing and maintaining nursing services' objective standards of nursing practice, written policies and procedures, and written job descriptions for each level of nursing personnel; (g) coordinating health services and nursing services with other resident care services; (h) planning in-service education and orientation training; (i) participating in the development and implementation of resident care policies; (j) bringing resident care problems requiring changes in policy to the attention of the facility policy development group; and (k) participating in the screening of perspective residents and their placement in terms of services at the facility. Id.

3. Director of Food Services

Each facility is required to have a director of food services who is either a dietitian or a dietetic service supervisor who is responsible for the food services. If the director of food services is not a dietitian, the person shall have frequent and regularly scheduled consultations from a dietitian consultant. 77 Ill.Admin. Code §300.2010.

4. Medical Director

Under federal guidelines, a facility must appoint a medical director. 42 C.F.R. §483.75. The medical director assists in the development of policies and procedures at the facility, participates in the quality assurance committee, and, if available, assists in medical emergencies. The medical director serves as an advisor to the administrator and/or DON. The role of the medical director is administrative. Excluding an emergency situation, the medical director does not provide medical care to the residents in the capacity of medical director.

5. Physicians

A facility is not licensed to provide physician services. However, the facility must ensure that each resident is under the care of an attending physician and that formal arrangements to provide for medical and behavioral emergencies at all times are in place. 77 Ill.Admin. Code §390.1030.

6. Nursing Staff

The nursing staff consists of registered nurses, licensed practical nurses, and certified nursing assistants. Each facility establishes its own administrative framework; however, each facility usually designates a nursing supervisor or charge nurse for each shift depending on the size of the facility. See 77 Ill.Admin. Code §300.1210, et seq., for the state regulations regarding nursing service.

7. Social Service

All facilities licensed for more than 120 beds must employ a full-time qualified social worker. 42 C.F.R. §483.15(g)(2).

II. PARTIES TO LAWSUIT

A. Plaintiff

If the resident is alive and does not have a power of attorney or an appointed legal representative, the resident is usually the plaintiff. If the resident has a legally appointed representative, the suit will be brought in the name of the representative. If the resident is deceased, then the matter is brought on behalf of his or her estate.

B. Defendant

Nursing homes are sued in the name of the licensee and/or owner of the facility: The holder of the license is referred to as the "licensee," which, under 210 ILCS 45/1-115, is defined as "the individual or entity licensed by the [IDPH] to operate the facility."

210 ILCS 45/1-119 defines the "owner" as

the individual, partnership, corporation, association or other person who owns a facility. In the event a facility is operated by a person who leases the physical plant, which is owned by another person, "owner" means the person who operates the facility, except that if the person who owns the physical plant is an affiliate of the person who operates the facility and has significant control over the day-to-day operations of the facility, the person who owns the physical plant shall incur jointly and severally with the owner all liabilities imposed on an owner under this Act.

The NHCA recognizes that there can be more than one owner of a facility. Often the facility is operated by one entity that leases the physical plant from another entity that owns the physical property of the facility. If there is no connection between these entities, then the operator is considered the owner. However, if the person or entity who owns the physical plant has some type of affiliation with the operator, then both entities are jointly and severally liable. 210 ILCS 45/1-119.

Liability for violations of the NHCA can be imposed only on the owner or licensee of the facility, not on an individual employee. 210 ILCS 45/3-601. See also Wills v DeKalb Area Retirement Center, 175 Ill.App.3d 833, 530 N.E.2d 1066, 125 Ill.Dec. 657 (2d Dist. 1988). The NHCA specifically provides that "the owner and the licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident." 210 ILCS 45/3-601. The courts have interpreted this provision as protecting individual nursing home employees from liability for civil damages for violations of the NHCA. In an effort to protect the facility being named as a defendant in a lawsuit, most long-term care facilities have created very complex corporate structures regarding the ownership and operation of the facility. It is not unusual for nursing homes to be a part of large conglomerates. It is always important for defense counsel to determine if the facility is owned by a parent corporation. An extensive review of public records is recommended in order for the parties to determine the entities involved and whether the entities sued have any liability exposure. Before filing an appearance or answer, defense counsel should verify that the proper entity was sued. It is recommended that defense counsel work closely with the facility's corporate counsel or risk manager in this regard.

III. CAUSES OF ACTION

A. Theories of Liability

1. NHCA

The private right of action is one of the most significant provisions of the NHCA. It gives Illinois nursing homes residents whose rights pursuant to the NHCA have been violated a private statutory cause of action for "actual damages and costs and attorney's fees." 210 ILCS 45/3-602. Harris v. Manor Healthcare Corp., 111 Ill.2d 350, 489 N.E.2d 1374, 95 Ill.Dec. 510 (1986). The NHCA also gives the resident the right to seek other redress from the court such as injunctive and declaratory relief (210 ILCS 45/3-603) and the right to bring a class action (210 ILCS 45/3-604). Any waiver of the resident's right to commence an action is null and void (210 ILCS 45/3-606), as is any waiver of the resident's right to a trial by jury (210 ILCS 45/3-607). 210 ILCS 45/3-608 prohibits retaliation against a resident who brings or testifies in an action.

Residents also have a private right of action for violations of their rights set forth in the "resident's bill of rights" (210 ILCS 45/2-101, et seq.). 210 ILCS 45/3-602. Many of the provisions in the Illinois NHCA resident's rights provisions, which apply only to facilities funded through the Medicaid and Medicare programs, mirror the federal Bill of Rights. The resident's bill of rights does not set forth quality-of-care provisions; rather, it focuses on residents' rights of privacy and confidentiality. Many of the rights are basic rights afforded to all citizens. The most litigated provisions of the resident's bill of rights are the right to be free from abuse and neglect (210 ILCS 45/2-107) and the right to be free from restraints (210 ILCS 45/2-106).

The NHCA guarantees that all residents have the following rights:

a. No resident may be deprived of any rights, benefits, or privileges guaranteed by law or the Illinois or U.S. Constitution solely on account of his or her status as a resident of a facility. 210 ILCS 45/2-101.

b. All new residents and their spouses must be informed upon admittance of their spousal impoverishment rights as defined in Illinois Public Aid Code (305 ILCS 5/5-4) and in 42 U.S.C. § 1396r-5. 210 ILCS 45/2-101.1.

c. All residents have the right to manage their own financial affairs. 210 ILCS 45/2-102.

d. All residents have the right to use and wear their own personal property and to have adequate storage space for such property. If any items of personal property are missing, the facility must initiate an investigation. 210 ILCS 45/2-103.

e. All residents have the rights to retain the services of their own personal physicians at their own expense; to obtain complete and current information regarding medical diagnosis, treatment, and prognosis in terms they can understand; to participate in the planning of their total care and medical treatment; and not to be subjected to experimental medical treatment and research. 45 ILCS 45/2-104(a).

f. Residents have the right to have all medical treatment and procedures administered as ordered by a physician. 210 ILCS 45/2-104(b).

g. Every resident shall be permitted to refuse medical treatment and to know the consequences of that action unless the refusal would be harmful to the health and safety of others and the harm is documented by a physician in the resident's clinical record. 210 ILCS 45/2104©.

h. Every resident (or a parent or guardian) must be permitted to inspect and copy all clinical or other records concerning his or her care and maintenance. 210 ILCS 45/2-104(d).

i. All facilities are required to have a policy for the implementation of physicians' orders limiting resuscitation methods. 210 ILCS 45/2-104.2.

j. Residents have the right to privacy in their medical and personal care program. 210 ILCS 45/2-105.

k. All residents have the right to be free from physical and chemical restraints. No physical restraints may be used on a resident unless ordered by a physician. 210 ILCS 45/2-106.

l. Residents have the right not to be given unnecessary drugs. 210 ILCS 45/2-106.1.

m. A resident identification wristlet may not be used without a physician's order documenting its necessity. 210 ILCS 45/2-106a.

n. All residents have the right to be free from abuse and neglect. 210 ILCS 45/2-107. (Note that 210 ILCS 45/3-601 requires that all nursing home employees or agents who become aware of abuse or neglect must report it to the facility administrator. The administrator must report it to the resident's representative or to the IDPH.)

o. Residents have the right to conveniently receive and mail correspondence and to have reasonable access to telephones; to have private visits at any reasonable hour unless not medically advisable and to have space for such visits; to have facility personnel knock, except in an emergency, before entering their room; and to have unimpeded, private, and uncensored communication by mail, public telephone, and visitation unless reasonably restricted by a physician. 210 ILCS 45/2-108. In addition, married residents have the right to be placed in the same room unless there is no room available in the facility or it is deemed medically inadvisable by the residents' attending physician and so documented in the residents' medical records. Id.

p. Residents must be permitted the free exercise of religion. 210 ILCS 45/2-109.

q. Any employee or agent of a public agency, any representative of a community legal services program, or any other member of the general public must be permitted access at reasonable hours to any individual resident of any facility as long as there is no commercial purpose or effect to such access and the access is for any of certain specified purposes. 210 ILCS 45/2-110.

r. A resident has the right to be discharged from a facility after giving the administrator, a physician, or a nurse of the facility written notice of his or her desire to be discharged. 210 ILCS 45/2-111.

s. A resident shall have the right to present grievances to the facility without the fear of retaliation. 210 ILCS 45/2-112.

t. The resident may not be compelled to perform labor for a facility. 210 ILCS 45/2-113.

Not only does the NHCA grant certain rights to the resident, but it also holds the facility responsible for protecting the resident's rights. 210 ILCS 45/2-201, et seq. The NHCA requires the facility to take certain steps to ensure that the residents' rights are not infringed and provides that all residents shall be given a written explanation of their rights enumerated in the Act "at the time of admission to a facility or as soon thereafter as the condition of the resident permits, but in no event later than 48 hours after admission, and again at least annually thereafter." 210 ILCS 45/2-211. The nursing home is required to specify in the nursing home contract the rights, duties, and obligations of the resident, except that the specification of a resident's rights may be furnished on a separate document that complies with the requirements of §2-211. 210 ILCS 45/2202(g)(6).

2. OBRA '87 Provisions

Unlike the NHCA, the OBRA '87 provisions do not provide a private right of action. See Nichols v. St. Luke Center of Hyde Park, 800 F.Supp. 1564 (S.D. Ohio 1992) (Title IX of the Social Security Act (42 U.S.C. § 1396r) does not create private right of action enforceable against private nursing homes for violations of its provisions); Illinois Hospital Association v. Edgar, 765 F.Supp. 1343 (N.D.Ill. 1991) (private right of action does not exist against Secretary of HHS for alleged violation of waiver provision of 42 U.S.C. § 1396a(a)(13)(A) allowing states to develop programs for reimbursement of medical expenses).

3. Common Law Negligence and the Standard of Care

The standard of care that nursing homes are held to is set forth in Stogsdill v. Manor Convalescent Home, Inc., 35 Ill.App.3d 634, 343 N.E.2d 589 (2d Dist. 1976). The Stogsdill court held:

The proprietors of a convalescent home, somewhat like those of a private hospital, are under a duty to exercise reasonable care to avoid injury to patrons, and the reasonableness of such care is to be assessed in the light of the patron's physical and mental condition. 343 N.E.2d at 610.

In addition to proving that the facility's conduct fell below the requisite standard of care, the plaintiff must show that the conduct was the proximate cause of the harm suffered by the resident. The Stogsdill court also set forth that the facility could allege the defense of contributory negligence. Contributory negligence is conduct by the resident that falls below the standard to which the resident should conform for his or her own protection and that is the proximate cause of the harm suffered by the resident. The facility has the burden of proving contributory negligence. The Stogsdill court noted that in regards to the typical nursing home resident, the standard for contributory negligence and/or assumption of the risk is a very subjective and relaxed standard. Id.

Each case should be reviewed to determine whether the defense of contributory negligence should be raised. Since many residents are disabled, it is usually a little more difficult to raise this defense in long-term care cases. Defense counsel should evaluate the jury appeal of a negligence defense before filing.

In situations in which the resident has some mental incapacity but has not been found formally to be mentally ill or incapacitated, whether the person was capable of contributory negligence is a question for the jury. Biundo v. Christ Community Hospital, 104 Ill.App.3d 670, 432 N.E.2d 1293, 60 Ill.Dec. 394 (1st Dist. 1982). In Biundo, the plaintiff alleged negligence against the hospital for the death of the patient, who jumped from his hospital window because of excessive postoperative pain. Id.

The following is a list of allegations related to contributory negligence that defense counsel should consider:

a. failure to follow physician's orders and advice;

b. failure to report symptoms;

c. failure to follow through with recommended treatment;

d. refusal of treatment (Newell v. Corres, 125 Ill.App.3d 1087, 466 N.E.2d 1085, 81 Ill.Dec. 283 (lst Dist. 1984) (refusal of treatment by competent adult patient fully cognizant of potential consequences of refusal after physician advises on reasonableness of necessity of preferred treatment is defense to charge of malpractice resulting from physician's failure to give treatment);

e. failure to obtain a second opinion; and

f. assumption of the risks, which occurs when a resident assumes the risk of harm from the negligent conduct of the facility defendant (e.g., when in the absence of an emergency a resident calls for assistance and the facility does not answer the call within a reasonable period of time (i.e., in less than a couple of minutes) and the resident attempts to get out of bed and injures himself or herself.

4. Breach of Contract

Nursing home residents are able to bring a cause of action against a nursing home for breach of contract. The Illinois Administrative Code provides residents the right to contract with the facility. 77 Ill.Admin. Code §§300.630, 300.3280. Further, the Nursing Home Care Act provides that a resident is able to bring a cause of action for the violation by the facility of any of the rights of a resident under Part 1 of Article II of the Act (210 ILCS 45/3-602), and §2-101 of the NHCA provides that no resident shall be deprived of a right guaranteed by law simply because he or she is a resident of a nursing home. Thus, the right to contract is a right guaranteed by the IDPH and by law (except, of course, in cases of incompetency). A resident of a nursing home is able to sue the facility for breach of contract as long as the resident can make the proper allegations for breach of contract, evidence of a contract, plaintiff's performance of all conditions under the contract, defendant's breach, and existence of damages as a result of the breach. Berg & Associates, Inc. v. Nelson Steel & Wire Co., 221 Ill.App.3d 526, 580 N.E.2d 1198, 162 Ill.Dec. 779 (1st Dist. 1991) (delineating pleading requirements for breach of contract). One count of the complaint in Harris v. Manor Healthcare Corp., 111 Ill.2d 350, 489 N.E.2d 1374, 95 Ill.Dec. 510 (1986), sounded in breach of contract; however, the matter was appealed to the Illinois Supreme Court for reasons of constitutionality.

5. Consumer Fraud

The authors' research has presented no cases in Illinois in which a resident has alleged violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act), 815 ILCS 505/1, et seq. To state a claim under the Consumer Fraud Act, the plaintiff must allege a deceptive act or unfair practice, intent on the defendant's part, reliance by the plaintiff on the deception, and occurrence of the deception during trade or commerce. Saunders v. Michigan Avenue National Bank, 278 Ill.App.3d 307, 662 N.E.2d 602, 214 Ill.Dec. 1036 (1st Dist. 1996). Of import is whether the cause of action implicates consumer protection concerns. If a cause of action were pursued against a facility based on the Consumer Fraud Act, the cause of action against the facility would most likely sound in contract. Illinois courts have held that when a plaintiff attempts to allege a violation of the Consumer Fraud Act in a case that on its face appears to involve a breach of contract, the relevant inquiry is whether the alleged conduct implicates consumer protection concerns. Scarsdale Builders, Inc. v. Ryland Group, Inc., 911 F.Supp. 337 (N.D.Ill.1996).

Please note Ardt v. State, 292 Ill.App.3d 1059, 687 N.E.2d 126, 227 Ill.Dec. 203 (1st Dist. 1997), which analogizes the attorneys' fees provision of the NHCA to the fees provision in the Consumer Fraud Act.

6. Survival Statute and Wrongful Death Act

The survival statute, 755 ILCS 5/27-6, and the Wrongful Death Act, 740 ILCS 180/0.01, et seq., are similar, so Illinois case law examines these statutes together much of the time. The distinction between the causes of action is that a survival action allows for recovery of damages for injury sustained by a decedent up to the time of death, whereas the wrongful death action allows a decedent's next of kin to recover damages for their loss based on wrongful actions of another that were committed against the decedent. Damages in a wrongful death action do not accrue until after death and address injuries suffered by the next of kin due to loss of the decedent. The survival statute maintains a cause of action that accrued to the decedent, so under it a cause of action is brought on behalf of the estate. Kaufman v. Cserny, 856 F.Supp. 1307 (S.D.Ill.1994).

Wills v. DeKalb Area Retirement Center, 175 Ill.App.3d 833, 530 N.E.2d 1066, 125 Ill.Dec. 657 (2d Dist. 1988), examined the Wrongful Death Act and the survival statute in relation to the NHCA. The court specifically held that the NHCA allowed actions, including actions for punitive damages, under the survival statute, but since the NHCA allowed for treble damages, the estate could not also recover for common law punitive damages under the survival statute. The court further held that a Wrongful Death Action could be maintained against the facility based on the allegations of the complaint; however, since the Wrongful Death Act does not include a provision for punitive damages, the court would not expand the legislature's intent. Thus, a claim for wrongful death based on the alleged negligent acts of the nursing home would stand but a claim for punitive damages would not. See also Lloyd v. County of DuPage, 303 Ill.App.3d 544, 707 N.E.2d 1252, 236 Ill.Dec. 682 (2d Dist. 1999) (complaint adequately pled wrongful death cause of action against nursing home facility).

7. Negligent Hiring, Supervision, and Retention

In Illinois, there is no case law that examines the issue of negligent hiring in a nursing home situation. However, in Starr v. Leininger, 198 Ill.App.3d 622, 556 N.E.2d 266, 144 Ill.Dec. 799 (3d Dist. 1990), the estate of a deceased nursing home resident brought a cause of action against the home to recover the value of a ring stolen by a home employee. The plaintiff argued that the facility was liable for the property damage under the theory of respondeat superior for negligent hiring practices, among other violations of the Nursing Home Care Act. The appellate court determined that although the facility may be liable for the negligent, willful, or even criminal acts of its employees when such acts are committed in the course of employment and in the furtherance of the business of the employer, the employer is not liable to an injured party when the acts were committed solely for the benefit of the employee. Thus, in Starr, the appellate court decided that the facility could not be held responsible for the theft by an employee. Significantly, the Starr court further limited the definition of "injury" under §3-601 of the NHCA to personal injuries, which did not include the theft of a ring.

Although seemingly the NHCA does not provide liability for negligent hiring, it still is possible to assert a cause of action for negligent hiring outside of the Act. To assert a cause of action for negligent hiring, a resident must allege and prove (a) that the employer knew or should have known that the person hired had a particular unfitness for the job that would create a foreseeable danger to others and (b) that this particular unfitness was the proximate cause of the plaintiff's injury. Strickland v. Communications & Cable of Chicago, Inc., 304 Ill.App.3d 679, 710 N.E.2d 55, 237 Ill.Dec. 632 (1st Dist. 1999). Strickland does note that the NHCA protects residents from the criminal acts of employees of a facility; however, it does not state that the Act provides a cause of action for negligent hiring. See Section V.A.2.h. below for more discussion.

8. Healing Art Malpractice

Section 2-622 of the Code of Civil Procedure, 735 ILCS 5/2-622, sets forth the requirement that all complaints of medical negligence be accompanied with a written report of a health care professional. This provision, which was enacted ten years after the Nursing Home Care Act, also limits the amount of attorneys' contingent fees that can be recovered and bars the recovery of punitive damages. The NHCA through the private right of action provision encourages litigation. Based on this conflict between the statutes, many plaintiffs' attorneys take the position that §2-622 does not apply in a nursing home case.

The Fourth District Appellate Court is the first court to address this issue. In Eads v. Heritage Enterprises, Inc., No. 4-99-0954, 2001 WL 1145161 (4th Dist. Sept. 26, 2001), an appeal was taken pursuant to Illinois Supreme Court Rule 308. The certified question presented was

In a case where the [p]laintiff has sued a nursing home for injuries sustained as a result of alleged violations by the nursing home, its staff[,] and employees, of the [Nursing Home Act] and the regulations promulgated pursuant thereto [77 II1.Adm.Code § 300 et seq. (West 2001)], is the [p]laintiff required to comply with the mandate of [section 2-622 of the Code]? 2001 WL 1145161 at *2.

The Eads court discussed the conflicts in the statutes noted above and found that the Nursing Home Care Act was more specifically applicable to the facts of the case before it and therefore controlled over §2-622 of the Code of Civil Procedure. Since the Nursing Home Care Act applied, the plaintiff was not required to file a §2-622 certificate.

The specific acts of negligence alleged in Eads were that the defendants failed to

l. adequately supervise plaintiff's activity;

2. ensure that she did not walk without assistance;

3. respond to her call light when she requested assistance;

4. equip her bed with a pressure release to alert staff that Eads had risen from her bed; and

5. adequately staff the facility to ensure appropriate assistance would be provided.

The defendants, i.e., the nursing home and its owners, moved to dismiss Eads' amended complaint arguing that her claim sounded in "healing art malpractice." The trial court granted defendants' motion and dismissed Eads' amended complaint allowing her leave to amend. Eads chose instead to seek an interlocutory review under S.Ct. Rule 308, and the appeal was allowed.

The court construed a conflict in the statutes, i.e., that the Nursing Home Care Act encourages litigation against owners and licensees of a nursing home for the protection of nursing home residents, while §2-622 discourages litigation in the area of medical malpractice.

Eads contended that the portions of the Nursing Home Act that outline residents' rights, the liability of the owner/licensee, and damage recovery implied that all negligence-type actions, including healing art malpractice, could be pled under the Nursing Home Care Act. Since the Nursing Home Care Act did not require a physician's certificate to initiate any type of suit, any action brought under the Nursing Home Care Act did not require such a certificate.

The Eads majority found an irreconcilable conflict between the Nursing Home Care Act and §2-622 by concluding that §2-622's requirement of the pre-suit determination by an expert that a cause of action is meritorious is an unreasonable burden on those who have a private right of action under the Nursing Home Care Act.

The majority opinion goes on to determine that the Nursing Home Care Act was more specifically applicable to the facts in the case before it and therefore controlled over §2-622.

Since the Nursing Home Care Act controlled and it does not require that a certificate be filed, the majority opinion held that no certificate was necessary in order for the plaintiff to proceed on its amended complaint.

Presiding Justice Steigmann dissented, noting that the plain language of §2-622 stated that it was to apply to "any action where damages are sought for injuries resulting from medical, hospital, or other healing art malpractice." [Emphasis in original.] 2001 WL 1145161 at *7. Further, Justice Steigmann noted that §1-108(b) of the Code provides that in matters in which the "procedure is regulated by statutes other than those contained in this [a]ct, such other statutes control to the extent to which they regulate procedure but [a]rticle II of this [a]ct applies to matters of procedure not regulated by such other statutes." [Emphasis added by Justice Steigmann.] 2001 WL 1145161 at *8.

Justice Steigmann points out that the Nursing Home Care Act contains no provision regulating pleadings; therefore, he concludes that there is no conflict in the Nursing Home Care Act and §2-622 of the Code.

According to Justice Steigmann, the relevant provisions of the Nursing Home Care Act and §2-622 of the Code are not in conflict and therefore if a- healing art malpractice claim arises in a facility covered by the Nursing Home Care Act, § 1-108b) of the Code governs and plaintiffs in those circumstances should be required to conform with the pleading requirements of §2-622 of the Code.

Justice Steigmann also notes that the certified question is very broad and majority opinion does not do a fact-specific analysis to determine whether a particular claim falls within the purview of the term "healing art malpractice."

Justice Steigmann does conclude that the allegations regarding defendants' lack of care and supervision in allowing the resident to fall did involve issues that were "inherently medical" and therefore the plaintiff's claim did sound in healing art malpractice and he would require that the plaintiff conform to the pleading requirements set forth in §2-622 of the Code.

As of this writing, there is a petition for leave to appeal pending before the Illinois Supreme Court.

Eads notwithstanding, defense counsel should continue to ask the court to require that a case for healing art malpractice brought under the Nursing Home Care act comply with §2-622.

Other cases that defense counsel should review on this topic include Owens v. Manor Health Care Corp., 159 Ill.App.3d 684, 512 N.E.2d 820, 111 Ill.Dec. 431 (4th Dist. 1987), and Kolanowski v. Illinois Valley Community Hospital, 188 Ill.App.3d. 821, 544 N.E.2d 821, 136 Ill.Dec. 135 (3d Dist. 1989) (distinguishing Owens and requiring §2-622 affidavit due to fact that resident was receiving skilled care), Taylor v. City of Beardstown, 142 Ill.App.3d 584, 491 N.E.2d 803, 96 Ill.Dec. 524 (4th Dist. 1986) (court determined that failure to provide bed rail restraints involved medical judgment of plaintiff's condition), and Stogsdill v. Manor Convalescent Home, Inc., 35 Ill.App.3d 634, 343 N.E.2d 589 (2d Dist. 1976) (pre-Act case finding medical judgment was required for nursing care provided to monitor ulcers on ankles).

9. Liability

a. Strict Liability

The NHCA, in contradiction to common law agency principles, imposes strict liability for both intentional and negligent torts. Specifically, 210 ILCS 45/3-601 states:

The owner and licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident.

b. Actual Agency

In order to establish an actual agency relationship in a hospital setting case, it must be shown that the hospital exercised control over the physician's treatment decisions and diagnosis. The courts look to see whether the hospital had any control over the way the physician performed the following functions:

1. conducting the medical examination;

2. taking the medical history;

3. evaluating the patient's condition;

4. prescribing medications;

5. ordering tests;

6. determining what consultant to call in; and

7. making a medical diagnosis.

c. Apparent Agency

The NHCA holds the facility harmless for the negligence of the resident's personal physician. See 210 ILCS 45/2-104. According to both federal and state law, long-term nursing care facilities as institutions are not licensed to provide physician services and in fact are prohibited from doing so. Despite these provisions, plaintiff's counsel may attempt to impose liability on the facility for the physician's negligence through the theory of apparent agency. The federal and state regulations and many of the long-term care documents address the relationship between the facility and the presiding physician and can be used by either the plaintiff or the defendant to establish an apparent agency relationship. The regulations that address this issue include the Medical Practice Act of 1987, 225 ILCS 60/1, et seq.; the Nursing and Advanced Practice Nursing Act, 225 ILCS 65/5-1, et seq.; the OBRA '87 regulations; the NHCA; and the IDPH regulations. Other documents that should be reviewed when faced with an apparent agency issue include the long-term care facility contract with the resident, the documents granting privileges to the attending physicians to practice at the facility, and brochures and advertisements.

Apparent agency flows from the acts of a principal and arises when, by words or conduct, the principal creates the reasonable impression in a third party that the agent has the authority to perform a certain act on its behalf. When establishing the relationship of apparent agency, the key element to be satisfied is justifiable reliance on the part of the plaintiff on a representation made by the principal or agent.

10. Other Forms of Liability

A violation of NHCA regulations may subject the violator (licensee) to other sanctions imposed by the Illinois Department of Public Health. Violations may be of three basic types:

Type A violation. A “Type ‘A’ violation” means a violation of the NHCA or of the rules promulgated thereunder that creates a condition or occurrence relating to the operation and maintenance of a facility presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom. 210 ILCS 45/1-129.

Type B violation. A “Type ‘B’ violation” means a violation of the NHCA or of the rules promulgated thereunder that creates a condition or occurrence relating to the operation and maintenance of a facility directly threatening to the health, safety, or welfare of a resident. 210 ILCS 45/1-130.

Administrative warning. If the IDPH finds a situation, condition, or practice that violates the NHCA but does not directly threaten the health, safety, or welfare of a resident, an administrative warning shall be issued. 210 ILCS 45/3-303.2.

Criminal penalties exist only for an intentional failure to correct Type A or Type B violations within the time specified in the notice of approved plan of correction, not for the original violation. People v. Gurell, 98 Ill.2d 194, 456 N.E.2d 18, 74 Ill.Dec. 516 (1983).

11. Other Remedies

Section 3-601 of the NHCA holds the owner of the facility as well as the licensee liable for any intentional or negligent act or omission of their agent or employees that injures a resident.

Section 3-603 of the Act permits a resident to maintain an action under the Act for any other type of relief, including injunctive and declaratory relief.

Section 3-604 of the Act allows class actions for violations of rights.

Section 3-701 provides that the operation or maintenance of a facility in violation of the Act is a public nuisance that may be enjoined.

Section 3-714 provides that remedies provided by the Act are cumulative and do not restrict a party from seeking any other remedy.

B. Typical Cases and Defenses

1. Fall Cases

Fall cases are the most prevalent type of cases. Most of these cases involve allegations of failure to assist and attend, failure to use or improper use of a restraint, or failure to properly use side rails.

a. Allegations

(1) Failure to assist and attend

One of the most common allegations of negligent care is the failure to assist and attend a resident. A typical case is one in which the resident suffers injury after falling when the resident had been designated as in need of assistance or was known to be recovering from a procedure. Other typical cases include allegations that the nursing home failed to recognize that the resident required assistance with ambulation or needed to be restrained. These types of cases usually involve occurrences in which the resident is injured while undressing or using toilet facilities. Other situations include allegations that the facility failed to answer a call for assistance in a reasonable time frame.

(2) Failure to properly use a restraint

Cases involving falls usually concern allegations of lack of supervision after the resident has been left unrestrained and/or unattended in a chair, wheelchair, or Geri-chair. Allegations of injury involving a fall also occur when a resident is injured while being transferred with the assistance of the facility staff.

(3) Failure to properly use side rails

Cases involving falls from bed often involve mixed allegations of failure to restrain, failure to supervise, failure to use side rails, and failure to assist and attend. In some of these cases, the resident had some type of restraint but the allegations state that the partial restraint was inadequate.

b. Defenses

The following are potential defenses to the various allegations in fall cases:

· Federal and state regulations prohibit the use of restraints except as necessitated by the medical condition of the resident and as ordered by the physician.

· The facility complied with federal and state regulations and the facility's policies and procedures manual.

· There was no order for a restraint by the physician, or, in the alternative, if there was an order, the circumstances at the time of the occurrence did not permit the use of a restraint.

· The family and/or resident did not give the appropriate permission for the use of restraints. (Documents supporting this defense are usually found in the resident's acknowledgment of receipt of the resident's bill of rights, the contract, and the resident's business file.)

· The resident had a history and tendency of falling that was addressed in the resident's care plan, which included an overview and assessment of the resident's condition.

· Reasonable procedures were used to prevent the fall while still allowing the resident the least restricted environment.

· The resident was receiving adequate assistance from the facility staff and transferring when the accident occurred.

· If the fall was caused by equipment malfunction, the equipment was properly maintained and had no prior history of a malfunction.

2. Injuries Due to Use of Restraints

a. Allegations

Cases involving injuries due to use of restraints involve allegations of failure to properly apply the restraint or follow the doctor's order regarding the restraint. The most common type of case is one in which the resident strangles or severely injures himself or herself in the restraint.

b. Defenses

The following are possible defenses to restraint injury cases:

· The restraint was ordered by a physician, and the order and physician's notes document the justification for the restraint order.

· The restraint ordered was appropriate for the resident's condition and/or personal safety.

· The restraints were checked and released on a regularly scheduled basis in conformance with the physician's order.

· All federal/state regulations relative to restraint use were complied with.

· The regulations prohibit a facility to utilize restraints for convenience.

· Restraints may be used only to treat medical symptoms.

· The regulations require that if a restraint is needed, the facility must use the least restrictive restraint.