There are many challenges in successfully pleading and prosecuting wrongful death lawsuits as a result of Covid-19 in Illinois. The Nursing Home Care Act, 210 ILCS 45/3-602 et seq., does not permit a wrongful death action, for the benefit of the decedent’s next of kin to be commenced pursuant to the terms the Nursing Home Care Act (hereinafter “the Act”) 210 ILCS 45/3-603. The Appellate court held in Pietrzk v. Oak Lawn Pavillion that: “The Nursing Home Care Act seeks to compensate a resident not an heir of resident.” 329 Ill. App. 3d 1043, 1050 (2002). Either an administrator, executor, or special administrator cannot bring an action under the express terms of the Act for the benefit of the next of kin (heirs).
Nursing Homes in Illinois are classified as “skilled nursing and intermediate care facilities pursuant to 45 ILCS 1-113 and 77 Ill. Admin. Code Ch. 1 sec. 300.330. Nursing homes are subject to the requirements of the Act and regulations promulgated by the Illinois Department of Public Health (hereinafter “IDPH”) pursuant to the terms of the Act. These regulations can be found at 77 Ill. Admin. Code sec. 300.100 et seq. Violations of the statutory provisions of the Act and the regulations developed by the IDPH should be plead in a complaint as specific allegations of negligence. These same violations of the Act and the regulations set forth by IDPH can also be utilized in Ill. Pattern Jury Instruction Civil No. 60.01 which informs the jury that if it decides that the defendant violated the statute or regulations on the occasion in question, then it may consider that fact together with all the other facts in evidence in determining whether the defendant was negligent.
Governor Pritzker issued Executive Order 2020-19 on April 1, 2020, which immunized health care facilities which includes nursing homes from any civil liability for injury or death associated with providing health care services to patients infected with Covid-19 unless it involved gross negligence or wilful misconduct. On May 13, 2020, Governor Pritzker issued Executive Order 2020-37 which amended Ex. Order 2020-19. This amendment extended the qualified immunity granted to health care facilities, but only granted the immunity if the health care facility was “…providing health care consistent with the current guidance by IDPH.” This is a significant amendment because only a nursing home that is providing care to residents consistent with IDPH guidelines are immunized.
All complaints should allege that nursing home did not comply with IDPH regulations contained in 77 Ill. Admin Code 300.100 et seq. For example if a nursing home does not isolate a resident who is suspected of being infected with Covid-19, the qualified immunity is not operative. Difficulties arise in representing families who have lost a loved one from this virus in nursing homes. Normally there is no visitation in the nursing home, so the information is commonly gathered from medical personnel by telephone calls, zoom sessions and even FaceTime. It is very helpful if someone in family took notes of the communications. If you are an attorney and would like to refer a death action as a result of Covid-19 in a nursing home or a family member looking for representation, feel free to contact Edmund Scanlan at 312-422-0343.