Illinois Injury and Mass Tort Lawyer Blog

Although lawsuits against nursing homes may be brought for a variety of reasons, these lawsuits often require experts. Experts can help explain the standard of care the home was required to follow or the cause of a resident’s injuries. As in any negligence claim, in a claim alleging the negligence of a nursing home facility, a plaintiff must establish that the defendant owed a duty to the plaintiff, the defendant breached that duty, the breach caused the plaintiff an injury, and the plaintiff sustained damages.

In nursing home lawsuits, once the plaintiff establishes that the nursing home owed a duty to the resident, the next question is whether the defendant’s conduct fell below the standard of care required under the circumstances. For example, a nursing home is normally expected to keep residents properly bathed and fed and to provide them with their medications. To prove that the staff was negligent, the staff’s conduct must have fallen below the relevant standard of care. Many nursing home residents are sick and elderly, and many residents die in nursing homes—thus, the fact that a resident died in the home’s care is insufficient. In order to succeed in a nursing home lawsuit, a plaintiff must show that the nursing home failed to properly care for the resident in order for the home to be held responsible. Accordingly, generally, expert testimony is required to establish the standard of care and to show that the nursing home’s conduct fell below the expected standard.

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In a recent case, a state supreme court had to decide whether an arbitration agreement, governed by the Federal Arbitration Act and entered into by a nursing home patient and her power of attorney, was enforceable against her husband after he brought a wrongful death action. The man brought a lawsuit against a nursing home after his wife died at the home, alleging that the home was negligent in the care of his wife and that this negligent treatment caused her death. The nursing home responded by arguing that the case had to be resolved through arbitration, and the trial court agreed. The plaintiff appealed, claiming that he could not be bound to his wife’s arbitration agreement as a wrongful death beneficiary.

At the time the wife was admitted to the nursing home, she had executed a power of attorney in favor of her husband. Her husband then signed an arbitration agreement, stating that claims subject to arbitration included any claims arising out of her stay at the home. The agreement also stated that it applied to the patient and the nursing home, as well as the parties’ successors, assigns, and intended and incidental beneficiaries. It also stated that it applied to “any parent, spouse, child, executor, administrator, heir, or survivor entitled to bring a wrongful death claim.”

Considering the language in the contract and other similar cases, the court found the arbitration agreement did bind the woman’s beneficiary. Thus, the agreement required him to resolve the claim through arbitration, and he could not bring the claim in court.

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Nursing home residents are protected from abuse by fellow residents under Illinois law and federal law. Illinois’ Nursing Home Care Act (NHCA) protects residents from any intentional or negligent act or omission that causes an injury to a resident. This includes abuse committed by staff members, as well as abuse committed by other residents. If a nursing home fails to protect a resident from abuse by another resident, the nursing home may be liable for this failure.

Sex Offender Accused of Abusing Fellow Resident After Recent Release from Prison

According to a local news report, a convicted sex offender is accused of assaulting a fellow resident at a nursing home in New York. The accused resident is a 62-year-old man who was recently released from prison after serving 20 years for robbery and sexual abuse. His past history involved targeting elderly women. According to the allegations, the man entered a fellow resident’s room at night, pulled off her blanket, and molested her. He is also alleged to have touched other female residents before this incident.

A state official responded to the incident and questioned whether the state’s department of corrections communicated with the nursing home. The department of corrections said it had informed the nursing home that the man was a level-three sex offender. However, the nursing home said that it was not told of the man’s conviction until he was admitted and that they learned of it only after the police visited the facility. The home also said it could not immediately discharge him after it found out about his past because it was required to find another facility to take him before they discharged him. According to the report, after the nursing home found out about the man’s past, staff monitored him every 15 minutes and later supervised him full-time. After the alleged assault, the man was released to the state health department and police.

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In a recent case, a court decided that a resident’s estate could not be compelled to enter arbitration, even though the deceased resident’s daughter had signed an arbitration agreement on her behalf. When the resident was admitted to a nursing home, her daughter accepted a health care proxy designation on her mother’s behalf, but the mother never executed a durable power of attorney for her daughter. The daughter then signed the home’s admission agreement, which included an arbitration agreement. The arbitration agreement stated that the arbitration agreement was voluntary and that failing to sign the arbitration agreement would not affect a resident’s ability to stay at the facility.

The nursing home admission agreement defined a legal representative as a person who has authority to act on the resident’s behalf under independent legal authority, such as a guardian or a power of attorney. The mother was not competent at the time the documents were signed. The daughter signed the admission agreement as her mother’s “legal representative” and signed the arbitration agreement under the line designated for a “resident/representative signature.” The daughter signed the documents so that her mother could be admitted to the home.

After the mother died while in the care of the nursing home, the mother’s estate brought a claim against the nursing home, alleging that the home caused the mother injuries that resulted in her death. The nursing home responded by arguing that the case had to be resolved in arbitration, pointing to the arbitration agreement signed by the resident’s daughter. The trial court found that the mother was not competent at the time the admission agreement was signed and that the daughter signed as her legal representative, so the case had to be resolved in arbitration. The mother’s estate appealed.

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