Articles Posted in Tips for Lawyers

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Earlier this year we reported on the pending United States Supreme Court decision in a case known as Mutual Pharmaceutical Co. v. Bartlett. The legal matter may have an impact on seniors, because it deals with liability following serious harm caused by medications. Considering that important role that medications play in the lives of many seniors with different ailments, any ruling which impacts one’s ability to recover following adverse reactions to a dangerous drug may affect the legal rights of the elderly community, including manby Illinois nursing home residents.

The Generic Drug Case

This week the Supreme Court finally handed down its ruling in the Mutual Pharmaceutical case (full opinion here). Technically the case hinged on whether federal law prohibited certain state common law rulings in regard to strict liability for harm caused by design defects in generic drugs. That is a bit of a mouthful. Put another way, the decision affects whether a patient who has an adverse reaction to the drug can sue the manufacturer if the drug is a generic version, instead of the name brand version.

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As with any profession, experience in certain legal cases ultimately breeds the best results. That is why all those who may work on nursing home neglect cases in the future should take advantage of the opportunity to learn the ins and out of these matter from those who have worked on these cases for decades. Fortunately, attorneys have just that opportunity thanks to a new seminar being organized by the American Association for Justice (AAJ). The meeting is entitled “Litigating Nursing Home Cases Seminar: From Case Selection to Trial,” and is being presented in conjunction with the AAJ’s Nursing Home Litigation Group. It is open to AAJ Plaintiff Members and AAJ Paralegal Affiliates.

As the name implies, the seminar will cover everything from the intake process to identify the cases with the best chance of success all the way to the ultimate trial. Considering its wide-ranging scope and the critical importance (and prevalence) of these cases, this seminar is something that many local attorneys and firms should consider.

Promotional materials for the event explain that “Program highlights include sessions on building a corporate case by following the money trail, proving understaffing at the nursing home, and selection and use of experts.”

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One of the founding partners at our firm, Attorney Steve Levin, will be presenting next month at an “Advanced Evidentiary Issues At Trial” seminar. More information on the event can be found at the Illinois Institute for Continuing Legal Education (IICLE) website. The event will take place on January 25, 2013 at the UBS Tower & Conference Center. It will last all day.

The event will cover a range of topics. However, Steve will present on particularly complex issues in wrongful case cases, including application of the Illinois “Dead Man’s Act.” The Act is a tricky issue in many cases, and when not understood properly, it may prevent plaintiffs from obtaining full recovery following accidents where an important individual in the incident has died.

Dead Man’s Act in Illinois

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Two of the nursing home neglect lawyers at our firm, Steven Levin and Jordan Powell, recently had an extended article published in the December issue of Trial magazine. The article (which can be downloaded in full here) is a guide for fellow attorneys regarding some of the complexities in dealing with depostions in cases where allegations are made of nursing home safety violations and harm to residents. With decades of combined experience on the subject, Attorneys Levin and Powell are able to share helpful information on key aspects of thesee cases, including how to discuss the matter with defense witnesses as well as how to beat back the most common defense tactics in these actions.

Nursing Home Neglect Case Commonalities

The article discusses how most legal cases alleging violation of safety rules follows a standard process-embodied by deviation from one of several requirements outlined in federal nursing home statutes. In general, these requirements can be broken down into five different areas: assessment, planning, implementation, re-evaluation, and communication. Taken together, nursing homes are required to plan for the unique care needs of the residents, properly execute that plan, change the plan if necessary, and always share information with the resident and their families. A breakdown in any one of these areas often leads to an accident or poor care which harms the resident.

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Carlton at the Lake, Inc. v. Barber, Nos. 1-09-0039 (5-20-10) found that long-term care facility filed suit for balance due for services to husband during his two-year residence at facility, and claim against wife under Illinois Rights of Married Persons Act, and quantum meruit claim against both. Breach of contract claim properly dismissed, as contract for residency was not signed by husband or by his daughter who admitted him to facility, or by facility representative, thus contract unenforceable. Claim under Married Persons Act properly dismissed as claims against wife are dependent and reliant on husband’s underlying liability, which is unenforceable as contract not signed. Facility can state claim for quatum meruit, and its burden upon remand is to demonstrate services it provided and reasonable amount of fees sought. This Illinois Appellate Case will impact nursing home law.

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Carter v. SSC Odin Operating Company, No. 106511 (4-15-10) found that the public policy underlying antiwaiver provisions of Nursing Home Care Act are not “grounds as exist at law or in equity for the revocation of any contract” within meaning of Section 2 of Federal Arbitration Act. Thus, public policy of Nursing Home Care Act is not a valid contract defense to FAA preemption. This Illinois Supreme Court case will have a negative impact on nursing home law.

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Vincent v. Alden-Park Strathmoor, Inc., No. 2-09-0625 (4-7-10) found that common law punitive damages are not available in action by estate of deceased nursing home resident based on Survival Act for willful and wanton violations of Nursing Home Care Act. Neither statute nor equitable considerations warrant such remedy. This case will impact nursing home law damages.

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The Chicago Daily Law Bulletin has reported that a very influential case has been decided by the Illinois Appellate court. The court ruled that the trial court had erroneously dismissed the plaintiff’s claims against a nursing director.

The case involved a woman who had become a resident of Pinnacle Health Care LLC in Waukegan due to multiple sclerosis. She entered the nursing home without any skin impairments but developed 16 pressure sores during her stay. These pressure ulcers became infected and progressed to more serious stages which included bleeding from a sacral decubitus ulcer. She also developed multiple severe urinary tract infections and respiratory problems. She wrongfully died from respiratory failure.

Her family filed a nursing home lawsuit against Pinnacle and Carolyn English, a registered nurse and director of nursing at the facility. These allegations included medical malpractice and wrongful death. These were all based on the fact that the nursing home employee should have known that the victim was at a high risk for the bed sores and resulting infections in addition to the urinary tract infections. At the trial court level, the nursing director claimed that these were violations of the Illinois Nursing Home Act and state Department of Health regulations. She further argued that liability for violations of the Nursing Home Care Act can be imposed only on the owner or licensee of a nursing home. However, the appeals court stated that “Assessing the allegations in plaintiff’s complaint in the light most favorable to her …, we conclude that the counts against English state claims for healing-art malpractice independent of the Nursing Home Care Act. … Plaintiff’s complaint listed 18 separate negligent acts or omissions by English involving medical judgment. … Given the breadth of the term ‘healing-art malpractice,’ as well as the fact that the allegations in plaintiff’s complaint involve aspects of medical judgment, we conclude that the trial court erred in dismissing the counts against English.” This case will greatly impact nursing home negligence law.

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Childs v. Pinnacle Health Care, No. 2-09-0648 (3-17-10) reversed a decision that found that a nursing home lawsuit filed for wrongful death and negligence against nursing home corporation and its director of nursing; trial court dismissed with prejudice counts against director of nursing, holding that these allegations were premised on Nursing Home Care Act, to which only licensees and owners of nursing homes can be held liable. Dismissal improper, as counts against director of nursing include allegations of negligent acts or omissions as to medical judgment, thus sounding in healing art malpractice and within realm of her professional nursing responsibilities, and they are independent of and not proscribed by Nursing Home Care Act. This case will have a large impact on nursing home law in Illinois.

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Fosler v. Midwest Care Center, Il, Inc., No. 2-08-1005 (5-8-09) found that the Federal Arbitration Act preempts the provisions of the Nursing Home Care Act that purport to nullify resident’s waiver of right to commence court action and to jury trial. A nursing home resident, whose daughter signed agreement for her nursing home admission, is barred from pursuing suit for injuries sustained there. Nursing home admission involved interstate commerce and is thus subject to FAA, and agreement provided that any disputes would be resolved through arbitration as governed by FAA. This case will have an unfortunate impact on nursing home law in Illinois.