Justia Lawyer Rating for Robert D. Kreisman

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The Illinois Appellate Court for the First District has affirmed in part and vacated in part a decision of the Circuit Court of Cook County. In January 2011, Robert Holman was a resident at a long-term care facility in Chicago called the Renaissance at Midway. On or near Jan. 22, 2011, he was assaulted by another resident of the long-term care facility. His left eye was injured, which severely impaired his vision.

Johnnie Stuckey, Holman’s sister, as well as his attorney, filed a complaint with the Illinois Department of Public Health. On April 13, 2012, the department report showed that Holman had been assaulted by his roommate who had “become physically aggressive toward staff and pushed staff on [a] bed” in early January. The roommate, identified only as John Doe, was described in the report as “severely demented.”

Stuckey sent several discovery requests seeking information about John Doe. The defendant, the Renaissance at Midway, refused to comply, arguing that the Health Insurance Portability and Accountability Act (HIPAA) prevented Renaissance from responding to the discovery requests, which in addition to his name included requests for Doe’s address, criminal background and history in the facility as well as his medical charts.

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The nursing home real estate trust investment company, Extended Care Real Estate Trust Investments, which operated 146 skilled nursing facilities in 11 states, was found to have over-billed Medicare and Medicaid, provided substandard and essentially worthless nursing care and put in place worthless rehabilitation therapy.

Two private citizens, including the entities’ area director of rehabilitation, brought separate whistleblower lawsuits under the federal False Claims Act on behalf of the United States and themselves. It was alleged that Extended Care bilked Medicare and Medicaid for nursing services that they didn’t provide or failed to meet federal and state standards in 33 of the skilled nursing homes in multiple states. These states included Indiana, Wisconsin, Minnesota, Ohio, Kentucky, Pennsylvania and Washington.

The lawsuit alleged that Extended Care chose not to provide an adequate number of skilled nurses and sufficient catheter care and failed to prevent pressure ulcers or falls to its many residents.

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Samuel Dale Graham was driving his SUV; his wife, Sharla Kay, and their two children were passengers. Another motorist, Alisa Prueitt, drove off the road, over-corrected and struck the Graham SUV, which rolled over.

Samuel, 37 at the time, suffered fatal blunt-force trauma injuries and died at the scene. At the time of his death, he was working full time for a hospital and part time for a private healthcare company.

Sharla Kay was 33 at the time and suffered spinal fractures at C-1, C-6 and T-3 as well as facial cuts. She missed several months of work and continues to suffer pain and limited range of motion in her neck and back. Her medical bills totaled $11,700.

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A Kentucky Appellate Court has held that an admission agreement’s arbitration clause signed by the resident’s son at the time of her nursing home admission did not apply to the son’s subsequent wrongful death lawsuit against the nursing home and its operators.

John Cox III signed an agreement to admit his mother Elizabeth Cox to the Kindred Nursing Centers. The agreement included a clause, as do many nursing home agreements, authorizing arbitration of claims against the nursing homes. After Elizabeth died, her son brought a lawsuit against the nursing home and its operators claiming wrongful death and other claims of nursing home abuse and resulting damages.

The nursing home and its operators moved to compel arbitration. The trial judge granted the motion as to all claims except the plaintiff’s wrongful death action.

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A Pennsylvania Superior court held that a trial judge did not violate the Federal Arbitration Act (FAA) by refusing to split up a plaintiff’s wrongful death and survival claims arising out of the death of a nursing home resident. Margaret Tuomi was a resident at Kenric Manor, an assisted living facility. She developed contractures, pressure sores, a urinary tract infection, pneumonia, infection from a skin break and other medical issues. She was treated at a hospital. After she was transferred to Extendicare Health Facilities nursing home, she developed additional health problems from which she later died.

Tuomi’s husband and the administrator of her estate filed a wrongful death lawsuit on behalf of her beneficiaries and a survival action against Extendicare and Kendric Manor. Extendicare moved the trial court to compel arbitration under an arbitration agreement signed by Tuomi’s husband when she was admitted to Extendicare.

The trial judge held that Tuomi’s wrongful death beneficiaries, who were non-signatories to the arbitration agreement, could not be compelled to arbitrate. The trial judge also held that under Pennsylvania’s procedural law, the case brought as a wrongful death claim and survival action could be consolidated and in fact were required to be consolidated and remained together in court.

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Eleanor Groeller died, allegedly because of the nursing home negligence of Evergreen Healthcare Center where she was a resident. Her son, William M. Groeller Jr., who was administrator of her estate, filed a negligence complaint against Evergreen Healthcare.

The trial was held in the Circuit Court of Cook County wherein Groeller’s counsel requested that the judge give a jury instruction on institutional negligence as to the nursing home. However, based upon testimony from Groeller’s nursing expert about the alleged failings of the nursing home’s nurses, the defendant nursing home requested an instruction to the jury on professional negligence. That instruction was designed to instruct the jury on the negligence of the nurses, not the nursing home as an institution.

The trial judge decided to give both of these jury instructions. The jury returned a verdict for the nursing home and Groeller appealed arguing that the instructions were contradictory.

 

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In a nursing home dispute, the Illinois Appellate Court weighed in on an issue of whether a health-care power of attorney holder could bind the nursing home resident to an arbitration provision in order to gain admission to the long-term care facility. In this case, Edward M. Fiala Jr. sued Bickford Senior Living Group in Kane County, Ill. Bickford moved to compel arbitration based on an agreement, called “the establishment contract” that his daughter, Susan Kahanic, signed as attorney-in-fact under a health-care power of attorney.

Kahanic’s signature on the establishment contract was required in order to get Fiala admitted to Bickford Senior Living Group’s facility.

It was argued that the health-care power of attorney did not authorize Kahanic to consent to the arbitration provision in the establishment contract. The trial court agreed and denied Bickford’s motion.

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In an odd but troubling state of the law, the Illinois Appellate Court uncovered a hole in the Illinois Nursing Home Care Act protecting nursing home residents. In this case, Marvin Gruby was a resident of Manorcare Health and Rehabilitation Services. He was given notice that the nursing home wanted to involuntarily transfer him or discharge him from its Highland Park, Ill., facility. The move to discharge him was based on the allegations that he endangered the safety and health of other residents.

He filed a lawsuit claiming that the Illinois Department of Public Health deprived him of his right to a hearing under the Illinois Nursing Home Care Act and the federal Nursing Home Reform Amendments (NHRA) and appealed from a circuit court order that dismissed his complaint for administrative review.

The Illinois Department of Public Health started a hearing on Gruby’s objections to his discharge from Manorcare. During the continuance, Gruby was briefly hospitalized for a minor surgical procedure. While he was in Northwestern Memorial Hospital, Manorcare declared it would not permit him to return to its nursing home. Then it withdrew the notice of involuntary discharge or transferring and asked the department to “close this file.”

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Marjorie Stearns, 89, suffered from dementia. She lived full time in a nursing home. The nursing home records showed that Marjorie had fallen at the nursing home. The nursing home initiated safety measures to protect against any future falls.

This Illinois Appellate case analyzed the legal concept of duty. It described two types of duties: one being the ordinary duty that all persons owe each other to guard against reasonably probable and foreseeable injuries that may arise as a consequence of an act and the second being an affirmative duty to act that arises as a result of a special relationship between one party and another.

In this case, the issue of duty was critical in that it had to be determined whether the ambulance service that was transporting the resident back from her dialysis treatment to the nursing home when she suffered a head injury had a duty to protect her.

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Cynthia Jaurdon-Simmons underwent neck surgery and was referred to Southern Nursing Home Health for her home-based daily wound care and weekly assessments of her viral infection.

About two months into her care, Southern Nursing Home Health stopped providing services to Jaurdon-Simmons, but the staff did not advise her of this or provide the necessary self-care equipment.

As a result of the lack of care, Jaurdon-Simmons did not receive the wound care that she needed. She suffered continued medical problems; her infection worsened. She sued the home health care agency claiming damages related to her pain and suffering. Before trial, the case was settled for a total of $99,000.

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