September 21, 2012

In a written opinion filed on September 20, 2012, the Supreme Court of the State of Illinois (“Illinois Supreme Court”)  in a case captioned Sue Carter v. SSC Odin Operating Company, LLC(2012 IL 113204) decided two issues: (1) whether an arbitration agreement between a resident of a nursing home and the nursing home itself was enforceable regarding the medical malpractice claim of the resident’s estate (the resident allegedly died as a result of the medical malpractice) and (2) if the arbitration agreement was enforceable regarding the wrongful death claim of the resident’s heirs.

What Is A Wrongful Death Claim Under Illinois Law?

Section I of the Illinois Wrongful Death Act (740 ILCS 180/0.01 et seq.) states in pertinent part: Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages …

“[A] wrongful death action covers the time after death and addresses the injury suffered by the next of kin due to the loss of the deceased rather than the injuries personally suffered by the deceased prior to death”

“[A]mounts recovered in a wrongful-death action … shall be distributed ‘to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person'”

The Illinois Supreme Court Decision

In the case before the Illinois Supreme Court, the Court stated “Defendant overstates the significance of the derivative nature of a wrongful-death action. Although a wrongful-death action is dependent upon the decedent’s entitlement to maintain an action for his or her injury, had death not ensued, neither the Wrongful Death Act nor this court’s case law suggests that this limitation on the cause of action provides a basis for dispensing with basic principles of contract law in deciding who is bound by an arbitration agreement … In the present case, although the arbitration agreements purport to bind not only Gott, but also her “successors, assigns, agents, attorneys, insurers, heirs, trustees, and representatives, including the personal representative or executor of … her estate,” no dispute exists that the only parties to the agreements are Gott and defendant. Although plaintiff signed the 2005 arbitration agreement, she did so only as Gott’s legal representative. Accordingly, plaintiff is bound to arbitrate only to the extent that plaintiff is acting in Gott’s stead.”

The Illinois Supreme Court concluded, “For purposes of count I of the complaint, which alleges a violation of the Nursing Home Care Act by defendant pursuant to our survival statute, plaintiff is bound to arbitrate that claim, which had already accrued to Gott prior to death and which is brought for the benefit of Gott’s estate. For purposes of count II, the wrongful-death action, plaintiff is not acting in Gott’s stead. As already discussed, a wrongful-death action does not accrue until death and is not brought for the benefit of the decedent’s estate, but for the next of kin who are the true parties in interest. Plaintiff, as Gott’s personal representative in the wrongful-death action, is merely a nominal party, effectively filing suit as a statutory trustee on behalf of the next of kin … Plaintiff is not prosecuting the wrongful death claim on behalf of Gott, and thus plaintiff is not bound by Gott’s agreement to arbitrate for purposes of this cause of action.”

Source (Sue Carter v. SSC Odin Operating Company, LLC(2012 IL 113204))

If you or a loved one were injured as a result of medical negligence that occurred in a nursing home (also referred to as “nursing home negligence,” “nursing home neglect,” and sometimes “nursing home abuse”), you should promptly consult with a local medical malpractice attorney (nursing home claim attorney) regarding your right to seek compensation from the responsible parties.

Click here to visit our website or call us toll-free at 800-295-3959 to be connected with medical malpractice lawyers (nursing home lawyers) in your state who may be willing to investigate your nursing home claim for you and file a claim on your behalf, if appropriate.

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