Coverage of “Costs” Is Crucial to Providing Zealous Representation

In the November 12 post, “No ‘Costs’ Uncovered: The Appellate Court’s Expansive Redefinition of ‘Costs,” Tara Kuchar asserts that in Grauer v. Clare Oaks, et al, 2019 IL App (1st) 180835, the prevailing argument over what constitutes a “cost” under the fee-shifting provision of the Illinois Nursing Home Care Act is “flawed” because it is overly broad.

We strongly disagree. The effectiveness of the Illinois Nursing Home Care Act hinges on the legislation’s directive that nursing homes found to violate a resident’s rights “shall pay the actual damages and costs and attorney’s fees” to the plaintiff when he or she prevails in court. This provision frees residents from financial concerns when making the decision to bring a case against a powerful institution that has done them harm. And it ensures their access to legal representation. An accurate interpretation of the cost-shifting provision is crucial to implementing the Illinois Nursing Home Care Act as legislators intended.

The Illinois Nursing Home Care Act empowers citizens to hire private attorneys who serve the attorney general-like function of policing nursing homes that provide substandard care. It is not unusual for a nursing home case to cost tens if not hundreds of thousands of dollars to prosecute through completion. The state lacks the resources to police these homes, and private citizens would be unwilling and unable to do so without private attorneys who know they can recoup these costs if they are successful.

The definition of “costs” is also not new. Plaintiffs’ lawyers for years have understood the meaning of “costs.” Nursing homes have been unwilling or unable to test their misplaced belief about the meaning of “costs.” We are not afraid. The backlash against Grauer is the likely result of the reality these nursing homes are now facing. After being advised by their lawyers for years that they hold insufficient insurance coverage and inadequate reserves to cover claims, the reality of the price to be paid for poor care from these nursing homes has now been confirmed by the appellate court.

While it is outside the scope of our responsibilities to advise nursing homes on their business practices, rather than planning for eventual illegality, why not simply follow the law? If nursing home owners devoted more funds to staffing, they could provide residents with the care they deserve and would not have to worry about how to cover the costs that arise from litigation.

It is right and appropriate for attorneys to use every tool available to advocate for their clients, especially when facing an adversary with such outsize power and financial resources as the private nursing home industry. As the appellate court held in Grauer, the Illinois Nursing Home Act empowers attorneys to provide this zealous representation. We take great pride in our track record as advocates for nursing home residents and will continue to seek justice for them and their families.

Steven M. Levin and Margaret Battersby Black, Levin & Perconti

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