Important Developments in Nursing Home Litigation
by Elizabeth F. Larsen
Two recent cases highlight some significant developments in nursing home litigation.
The case of Garcia v. Seneca highlights the requirement that a nursing home resident's injury must be foreseeable before the resident may recover for injuries, a rule that has special application when the accident was an unusual one.
In Garcia, suit was brought after a resident ejected himself from a fifth floor window and died. The resident suffered from paranoid schizophrenia and a number of other mental illnesses. On at least two occasions, the staff of the nursing home facility noticed the resident exploring the window in his room and trying to climb the window. The window itself only opened eight inches and was covered with a screen. The resident ultimately pushed the screen out and fell to the ground below.
The administrator of the resident's estate brought suit against the facility for negligence. At trial, the jury found against the facility, and awarded the estate $1 million in damages. However, the facility had submitted a special interrogatory to the jury as a part of the jury instructions. The special interrogatory asked the jury to determine if, prior to the resident's death, it was reasonably foreseeable that the resident would commit suicide or act in a self-destructive manner. The jury answered the special interrogatory in the negative. The trial court ruled that the general jury verdict against the nursing home could not be reconciled with the jury's answer to the special interrogatory, because if there is no foreseeability, there can be no negligence. The trial court then entered judgment in favor of the defendant, and the appellate court affirmed.
Garcia demonstrates the power of the use of a special interrogatory at trial, and reinforces the rule that not all injuries are compensable, as they must also be foreseeable.
In the latest published decision of Carter v. Odin Operating Company, LLC, the appellate court dealt again with arbitration agreements placed in the nursing home contracts. Suit was brought alleging negligence in the care of a resident, which contributed to her death. The defendant nursing home filed a motion to compel arbitration pursuant to two signed arbitration agreements. The trial court and appellate courts ruled that the arbitration agreements were unenforceable on the grounds that the agreements were against the public policy set forth in the anti-waiver provisions of the Nursing Home Care Act. The Illinois Supreme Court, however, reversed, finding that the Federal Arbitration Act preempted the Nursing Home Care Act, and therefore allowed such arbitrations clauses to be used to remove a case from litigation and to compel the resident to arbitrate his case more informally. The Court then remanded the case to the appellate court for further findings.
On remand, the appellate court again found that the agreements were void. The court reasoned that the agreements had a lack of "mutuality," which means that unless both parties to a contract are bound by its terms, neither is bound. The agreements at issue excluded any dispute where the amount in controversy was less than $200,000. According to the court, this exclusion meant that the defendant was assured that only a resident's personal injury claims due to the defendant's alleged inadequate or improper care would have to be arbitrated, and that the defendant's claims for nonpayment of a resident's care would not be subject to arbitration. In light of that, the court held that the arbitration agreements did not contain mutually binding promises to arbitrate, but only a unilateral obligation of a resident to arbitrate personal injury claims. As such, the agreements were not enforceable. Carter suggests that nursing home facilities that want to enter into arbitration agreements should avoid such an exclusion if they want the agreements to be enforceable.