Chicago Birth Injury Lawyer Blog

A recent article on MarketWatch reported that the FDA has granted approval for landmark clinical trials to study cord blood stem cell treatment for pediatric brain injuries and acquired hearing loss. These promising new studies will undoubtedly cause many expectant parents to consider donating or storing their infant’s cord blood. However, our Chicago birth injury attorneys urge parents to take a closer look at the legal implications of collecting and storing cord blood before they make a decision.

Cord blood is the blood remaining in the placenta and umbilical cord after a baby is born. Cord blood contains hematopoietic stem cells, which have the potential to become all of the different types of mature blood cells and is presently used to treat genetic, blood, and immune disorders, including several types of cancers. Conventionally cord blood was disposed of as medical waste, but with the appearance of both private and public cord blood banks, new parents have the choice of collecting and storing their infant’s cord blood in a private bank or donating to a public bank.

The new clinical trials announced by University of Texas Health Science Center at Houston, Children's Memorial Hermann Hospital and Georgia Health Sciences University are groundbreaking in that they will study the effect of cord blood cells on pediatric brain injury, cerebral palsy, and acquired hearing loss using patients’ own stored cord blood. These studies will be partnering with Cord Blood Registry (CBR), the largest private cord blood bank in the world.

According to the MarketWatch article, one study at the University of Texas will focus on the effect of cord blood on children with traumatic brain injuries. Another study at the University of Texas in partnership with Children’s Memorial will focus on how cord blood can help to heal inner ear injuries and its effect on treating acquired hearing loss in children. The study at Georgia Health will determine the benefits of using cord blood to treat children with cerebral palsy. A fraction of all of the ailments that will be studied can be attributed to some form of medical malpractice, in which cases parents should seek the counsel of a reputable personal injury attorney.

For many expecting parents, these groundbreaking studies will make collecting and storing their child’s cord blood in a private bank sound appealing. However, an birth injury lawyer or family attorney will point out that there are several legal issues that parents should consider carefully before making arrangements with a public or private cord blood bank.

First, there is the issue of ownership of the cord blood. When a person donates cord blood, all rights of ownership are relinquished with it and the bank may do what it likes with the donated material, including using it in research. Many private cord banks designate the parents as the custodians of the cord blood until the child becomes 18, at which time the child becomes the custodian. This could potentially present several legal problems of custody should the parents divorce before the child turns 18, and it may be wise to meet with a lawyer to discuss the possible ramifications and plan for the future custody and payment of storage fees. Additionally, many cord banks’ contracts state that the bank will take ownership of the cord blood if storage fees are not paid when due. Once the bank owns the cord blood, it may utilize the cord blood at its discretion including research, donations, and disposal.

Most private cord blood banks make no guarantees as to whether the blood will be viable at a specific time and require contracts that absolve them of responsibility in certain situations if the blood was not collected or labeled properly by the client or the client’s physician. Several banks require clients to acknowledge that cord blood may not be suitable for use by other family members and may not be appropriate for every situation. Additionally, most banks make no guarantees about the effectiveness of cord blood therapy or access to medical trials.

There is also a problem of privacy. Cord blood contains private medical information about the infant as well as the parents, including information about diseases and genetic predisposition to diseases. Such testing gives the bank access to information that could present several privacy problems for the child and parents that should be reviewed with an experienced Illinois birth injury attorney. Privacy problems can include the denial of healthcare or higher premiums due to a previously unknown disease or predisposition. Other problems can include social stigmatization and the psychological toll of knowing that a child or loved one is predisposed to a certain disease.

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It is impossible for those without children with special needs to fully appreciate all of the ways that the child’s various challenges affect their lives. Of course, everyone understands the difficulties that certain physical and cognitive issues have on a child’s mobility, growth, and ability to live on one’s own. However, there are physical, emotional, financial, social, and mental pressures that these families face on a daily basis which many community members may not be aware.

Our Chicago birth injury attorneys know that these families do not expect pity or awards for the work necessary to deal with these particular challenges. And though these families face challenges, we continue to be amazed at the way that these difficulties are converted into amazing gifts. Children with certain challenges are sometimes able to enrich the lives of those around them in ways that can never be underestimated.

However, that does not mean that we shouldn’t collectively work to improve the day to day living experience of these community members in reasonable ways. Making accommodations for those with disabilities has been a centuries old struggle. For most of our history there was little actual accountability on the part of community members to create spaces that were open and available to those with disabilities. Fortunately, the world is changing. Most are aware of the American with Disabilities Act which passed in 1990. The measure is a wide-ranging civil rights law that prohibits discrimination against those with disabilities in a range of areas. This measure, along with many similar steps, signals a public willingness and need to take these certain vulnerabilities into account, allowing these individuals the ability to participate in society in the same way that the rest of us can.

But we still have a ways to go. That is because there are still various areas where those with disabilities, many of which were caused by birth injuries, are left behind. For example, a Lower Hudson Valley News story reported this week on problems at many local playgrounds where equipment for those with disabilities is in disrepair. The story highlights the case of one mother who brought her daughter to the park to play on the swings. Her daughter has cerebral palsy. The mother lifted the girl out of her chair and set her in the bucket shaped seats designed for those with special needs. However, as the swing started moving, the seat simply popped open, sending the girl careening through the air. Fortunately the girl survived with only scratches and bruises. Our Illinois cerebral palsy attorneys understand that these types of challenges are faced daily by families in this situation.

While investigating the accessibility of area playgrounds, many other families came forward and explained how parks in the region offered little for children were certain special needs. A disability advocacy group in the area is working on a study at the moment to fully identify the ways in which these spaces are open and available to children with disabilities. As it now stands, families usually only hear about accessible playgrounds through word of mouth from other families. One advocate explained, “There’s a network. You learn over time which playgrounds are better.”

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Much ado has been made over the last few days about a recall of a million birth control pills by Pfizer. The recall was announced late last week, on January 31st. It seems that the problem stemmed from a packaging error. Pills that were placebos—without any active ingredients to have the intended effect on the taker—were packaged as actual pills. Those pills were then distributed to consumers. The company explained that Lo-Obral-28, Norgestrol, and Ethinyl Estradiol were all packaged incorrectly, meaning that those who took these pills may not have protection from pregnancy as they rightly would expect.

As explained in the IB Times, this situation raises whole host of issues, and our Chicago birth injury lawyers know that many community members will be asking very tough questions about this situation in the coming weeks and months. The recall is essentially an intersection of product liability cases, health law, and basic negligence. Injury lawyers across the country will likely be working hard to understand how the law might apply in these cases, depending on the specific harm caused by the mix-up.

Of course, the “harm” that might occur in these cases is an unplanned pregnancy. Each Illinois birth injury lawyer knows that while it is perhaps illogical to use the word “harm” in this case, it is certainly appropriate for those who purchase and use a pill to prevent pregnancy to seek recourse when basic errors on the drug company’s part mean that pill did not act as intended.

In some ways this is uncharted territory as far as the law is concerned. A local law school professor at the University of Loyola School of Law’s Beazley Institute for Health and Law Policy explained, “I’m not aware of any cases where a wrongful conception suit is brought against the manufacturers of contraception.” Wrongful contraception cases are filed when a person or business failed to act reasonably which leads to a pregnancy that otherwise would not have occurred.

It may come down to an argument about odds. No contraception promises 100% prevention of births. However, the effective rate certainly changed dramatically depending on the active ingredients in a pill. A placebo would offer no protection.

It is far too early to give any clear answers about the legal ramifications of this recall. Much more will be parsed out in the future as the realities of the situation crystallize in the form of real injury lawsuits and legal expert gather information to make claims for recovery. A lot also depends on how Pfizer seeks to respond to the situation. Depending on how much the company steps up to accept accountability for the error, if may become easier for victims to be easily and quickly compensated in a fair way. In all cases, however, anyone who suspects that they may have an unwanted pregnancy or was otherwise affected by the recall should seek out legal help as soon as possible so that one’s rights are preserved. Timing matters in these situations, so there is nothing to gain from waiting before seeking out proper legal representation.

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When our Chicago birth injury lawyers take on a new case, virtually all of the time the focus is on helping the injured child in the future. Contrary to the skewed portrayals made by those who constantly attack the justice system, these suits are not about “revenge” or “anger” or “making a quick buck.” At the end of the day, there are usually two clear purposes: (1) ensuring that the victims will actually have access to the things they need to recover from the harm they received, and (2) to ensure that steps are taken at the negligent facility to lessen the chance that a similar error will occur in the future.

Large jury awards are often scoffed at by some who don’t understand how the process works. For one thing, those awards do not occur nearly as often as is believed. But perhaps even more importantly, the actual costs of dealing with the consequences of these birth injuries over the course of a lifetime reach high figures quite easily. Families who have children suffering from conditions like cerebral palsy, for example, can readily explain the costs that are associated with the extra care that the child victim needs.

Our Illinois injury lawyers firmly believe that it is the duty of those whose errors cause such injuries to pay for the consequences of their actions. Failure to do otherwise leaves these individuals (and their families) in incredibly tight situations, often depriving them of available opportunities to improve the victim’s quality of life simply because of a lack of resources.

Perhaps nothing demonstrates this more than legal steps that are being taken on behalf of certain individual with disabilities who are fighting to have basic concerns met by state officials. For example, Oregon Live reported that the United Cerebral Palsy Association of Oregon is joining a class-action lawsuit against the state. The suit alleges that forcing these individuals with disabilities to spend their days in “sheltered workshops” where they complete rote tasks for less than minimum wage should be ended. The advocates are concerned that these programs do little to provide actual training or advancement to these community members. This ultimately may have significant effects on the individuals’ quality of life and overall well-being. One of the named plaintiff described her day as one where she sits in a room with 100 other people putting parts into boxes, folding bags, and packaging gloves. At some points the woman receives less than forty cents per hour for the work.

As this situation demonstrates, many community members will disabilities like cerebral palsy are forced to engage in complex legal battles just to receive a reasonable level of care and have basic opportunities afforded to them. It is imminently reasonable for a family to demand that the individual and institutions who caused a certain disability to ensure that the victim receives the level of care they need without being forced to scramble to receive less than acceptable treatment at the state’s expense. Our birth injury lawyers strongly believe that this comes down to basic fairness, a concept that people on all sides can understand.

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Our Illinois birth injury lawyers most often deal with cases that are related to Illinois medical malpractice, where a mother and child do not receive adequate care during delivery. However, in some limited circumstances a birth injury lawsuit may be filed based on theories outside of the medical malpractice context. For example, the Boston Herald this week discussed a drawn out legal fight by a woman who claims that she was forced to give birth to her child while lying on the floor of a jail cell. The case therefore is not based entirely on inadequate care by medical professional but essentially on no care being provided as a violation of her civil rights.

The case is a drawn-out one, as the plaintiff in the suit gave birth to her child more than fourteen years ago. It was only later that she filed a federal lawsuit claiming that those around her refused to believe her protestations that she was pregnant. Instead, jail guards dismissed her claims as ramblings by a mentally ill woman.

The woman ended up in the jail cell in 1997 because she was arrested for sleeping on a bench at a Metro bus stop. The woman admittedly had mental problems at the time of the incident. The lawsuit that was filed claims that health officials at the jail noted that she was in the advanced stages of pregnancy but they did nothing to account for her condition. Instead she was apparently put in a jail cell and left there for six days. It wasn’t until the woman actually gave birth to the child on the floor of the cell that a guard heard the newborn’s cries and called for help.

In responding to the allegations, the state’s jail-practices expert noted that the guards likely acted in the way that they did because they did not believe the woman’s claims because of her mental illness. However, the woman’s plaintiff attorney alleges that anyone could have known that the woman was pregnant simply by looking at her.

The lawsuit does include some allegations of medical malpractice—on the part of the jail health officials—but it also includes claims of basic negligence and civil rights violations for the overall way that the woman was treated. In addition, the suit makes claims that the tragic situation in this case was part of a pattern of behavior at the facility which has found that life-threatening deficiencies in medical caregiving to jail inmates was a routine occurrence. It is alleged that routine medical screenings were simply discontinued if the inmate was uncooperative, which led to the troubling situation here. The victim was uncooperative as a result of her mental illness which produces delusions and makes it difficult for her to care for herself.

The victim’s mental condition is sporadic, as she has moments of clarity before falling back into debilitating delusions. On another occasion, while in a 23-hour lockdown in the jail’s psychiatric ward, the victim allegedly told a nurse that she was pregnant and worried about her baby. However, the nurse explained that she thought the woman was lying “in order to get an extra sandwich.”

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In the eyes of many, “tort reform” is thought of as a synonym for damage caps. It is true that arbitrary limits on damages are the most common and well-known aspect of most tort reform efforts. However, as any medical malpractice lawyer can attest, the other aspects of tort reform can be just as harmful to the rights of injury victims of all kinds. Damage caps affect plaintiffs after a favorable verdict has been announced. Other tort reform efforts seek to strike at plaintiffs even before that point, namely when the lawsuit is being filed and when the arguments are being presented to a jury.

Many tort reform packages proposed by legislators impose a combination of ideas, all of which work to the disadvantage of injury victims and the advantage of big companies and insurance interests. However, as each Chicago birth injury attorney at our firm typically argues, all of these efforts are absolutely unnecessary and virtually all clearly violate various constitutional protections. Constitutions divide power among three branches of government for a reason, because a separation of powers is deemed fundamental to our system of governance, at both the state and national levels. The judiciary is charged with interpreting laws and implementing a system to actually adjudicate disputes. When the legislative body seeks to encroach on that function, the effort has to be stopped. All forms of medical malpractice “reform” are unnecessary and unconstitutional encroachments into the sphere of the judiciary.

That is exactly what one state court recently determined when it struck down a tort reform provision. The Arkansas Supreme Court ruled last week that narrow requirements about who is allowed to testify in medical malpractice cases constituted an unconstitutional violation of the separation of powers doctrine. The particular provision in question allowed only those doctors who were of the exact same specialty as the defendant to testify in these cases. This had proven to be particularly burdensome, because some courts (and defense attorneys) used the law essentially as a loop-hole to get meritorious claims thrown out of court. It is often very difficult to get an expert witness with the exact same credentials to testify, and there is ambiguity concerning the degree of similarity sufficient to meet the law’s demand.

Fortunately, the high court in this state rightly identified that it is not the business of the legislature to make blanket requirements on the witnesses necessary to allow a legal matter to move forward. The functioning of the court system in this regard must be left to the courts themselves.

In any event, it is clear that this law—and others like it—are pushed not for their fairness, but as yet another way for big interests, like the medical lobby and insurance companies, to keep more money in their pockets. The whole point of a jury system and adversarial trial process is to root out truth. The expertise of medical witness clearly plays a role in that process. But, if an expert truly is not capable of speaking intelligently on a topic, then that weakness can be fully exploited by a defense attorney when explaining to a jury why the expert’s analysis is incorrect. There is no logical reason to cut the process off beforehand and not even allow that witness to testify. But tort reform efforts are not about logic. Instead, they are based on chronic defendant’s desire to have shortcuts to avoid having to defend themselves altogether, even when their actions cause significant injury to others.

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It is easy for a Chicago medical malpractice attorney to get dismayed by the fact that so many community members get their basic information about Illinois medical malpractice lawsuits from those on one side of the tort reform debate. Instead of honest discussion or information sharing about what these lawsuits do and how they work, many residents instead get skewed information from those providing the information to gain support for a very specific political agenda. There is simply no way to trust the figures provided by tort reform groups—their data is inaccurate, distorted, or presented misleadingly. Yet, those inaccuracies are often permeated throughout the public, unfairly influencing the public opinion on tort reform issues.

Each Chicago birth injury lawyer at our firm genuinely believes that if the public actually had accurate information about the justice system they would be able to see much more clearly how those in the insurance industry and medical lobby are using the debate to advance ideas for their personal interests—not the overall good of the community. Along the same lines, the “Pop Tort” blog—published by the Center for Justice and Democracy—had a post this week entitled “Take Our Medical Malpractice Lawsuit Quiz!” The short three-page quiz is a handy way to show how the perceptions about the civil justice system are often wildly inaccurate, usually because of misinformation propagated by tort reformers.

Question One asks what percentage of case filing are actual medical malpractice suits. Considering the attention always focused on these particular cases (of which birth injury lawsuits are a subset), many believe that medical malpractice cases constitute a large chunk. The truth is that medical malpractice cases constitute less than 2% of all new civil cases. When looking just at tort suits the numbers don’t rise that much higher as medical malpractice cases are less than 8% of all tort cases. In other words, most suits are about other incidents, but medical malpractice cases always get the attention.

Question Two speaks to the trends with these lawsuits. Listening to tort reformers one might get the impression that these cases continue to rise in “epidemic-like” proportions. What is the truth? Over the last decade medical malpractice lawsuits have actually dropped by nearly 20%. In some states the filings have decreased dramatically, down 42% in some areas. There is no epidemic of medical malpractice suits. On the contrary, many victims are finding it harder and harder to get access to the system when they are hurt in this way.

Finally, Question Three asks what percentage of an award does a hospital or insurer usually pay following a large jury verdict. The answer often, is only 5-10%. This is a tricky issue that works to further confuse the public. One of the main ways that community members hear about medical malpractice is following large jury verdicts. However, in many cases, even after the jury award, the involved doctors and insurers rarely paid anything close to the actual amount. In the largest cases the victims actually receive anywhere from 5-10% of the award. The public is rarely informed of that, so they often go on believing that the stated jury amount is handed over instantly to the victims. Not so.

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Besides taking on Illinois birth injury cases, attorneys at our firm work in a range of others areas. In particularly we spent a lot of time helping victims of Chicago nursing home neglect and abuse hold their negligent caregivers and the facilities involved accountable. When discussing nursing home abuse and neglect issues we often mention that there is an unfortunate cone of silence that often exists around the mistreatment. Many more cases of mistreatment occur than are ever reported, because the victims fear the consequences of speaking out, are ashamed of the situation, or embarrassed that they are in a position to be mistreated. Simply getting victims to come forward remains a big challenge in that area.

The problem is much less prevalent in the medical malpractice context. More often than not patients and their families have suspicions when an error is made and they are less inclined to have natural fear or embarrassment about demanding accountability when appropriate. However, there are certain situations where the same feelings of fear or embarrassment might play a role in having a victim fail to come forward. The area that comes to mind most is related to birth injuries—abortion cases. Obviously there remains tremendous disagreement across the country when it comes to abortion laws. However, at the end of the day, that does not mean that medical professionals who perform these operations are not held to the same legal standards as all other medical professionals. There are very real risks of harm faced by mothers in these situations, and when actual harm is caused by a botched procedure then victims have the right to come forward and seek redress.

That is exactly what happened in a recent case highlighted this week by the Clarion Ledger. A woman visited a female health clinic a few years ago to have the procedure performed. In the middle of the procedure, for reasons that are not exactly clear, the doctor involved stopped and told the women that she would have to come back later to have it completed by another doctor. Confused, the woman left the clinic. The doctor failed to advise the woman, who was a diabetic, that she would take antibiotics. As a result, it wasn’t long before she began to experience serious medical problems. She started bleeding, cramping up, was sick, and felt dizzy. The problem eventually led her to suffer sepsis poisoning which threw her into a coma for a week and a half.

The woman was lucky to survive the ordeal, and afterwards she and her husband filed a lawsuit against the involved doctor and clinic. Surprisingly, no one representing the defendants showed up on the day that the trial was set to take place. As a result, the judge issued a default judgment in the case. When that occurs, all of the claims made by the plaintiff are presumed to be true. In issuing the default judgment the court awarded the family roughly $600,000 for their losses. Unfortunately, as is often the case when default judgments are issued, the family will likely have a prolonged fight to actually collect that award. The company is the suit has apparently dissolved and the clinic is now run under different owners.

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Fellow Chicago injury lawyers might be interested to learn that a few local federal courtrooms will soon have a new addition—video cameras. Considering that most local law firms were out of commission over the week between Christmas and New Years, many may have missed the story from WGN TV explaining that Chicago will be one of slightly more than a dozen locations in which the camera project will be tried.

According to the story, the three-year pilot program will record select federal civil case trials. The decision to do so was made by the Judicial Conference of the United States, which approved use in fourteen districts. In addition to Chicago, cameras will be placed in federal courtrooms in northern California and Massachusetts. However, the Chicago location, at the Dirksen Federal Building, is the largest of the courts to participate in the trial program.

While the program has been in the works for quite some time, it is set to start now for at the beginning year. Those involved explained that the cameras are already in place in the participating rooms. Three cameras will be shooting directly at three different spots in the courtroom—the bench, the podium, and the witness box. Local practitioners will be interested to know that judges can choose not to have their faces shown, if they desire. Also, the jury will never be shown.

Unlike in a few of the other locations participating in the test, the Chicago cameras will not stream directly to the public online. Instead, the video will be saved on a network. Then, interested community members will be able to visit the website for the federal courts of the Northern District and view the video clips after the fact. This “time delay” will allow those involved to make any edits that may be deemed necessary. It will be interesting to see if there is anything that plays out in a courtroom that is ultimately decided to be unfit for public viewing. In all cases the judge will make the final call on whether or not the tape is edited.

As the pilot program progresses and the overall effect is better understood, the federal court clerk noted that the project may eventually be expanded to allow live streaming and could include federal criminal trials.

It will be fascinating to see how this plays out, and whether or not it affects courtroom strategy. Chicago injury lawyers and defense attorneys will have a lot of things to consider when it comes to asking judges to censor proceedings. In addition, the greatest effects may be long-term. In other words, it is a bit tough to see how any strategy would change in a Chicago birth injury trial if the jury isn’t seen, the tapes are not live, and the public viewership is only small and after the fact. However, if viewing the tapes becomes popular and more and more local community members do so their perception of the judicial system may ultimately change. Those changing perceptions may have ramifications on the beliefs of the jury pool and could clearly shift public opinion on hot-button issues like medical malpractice damage caps and other tort reform issues.

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Our Chicago birth injury attorneys were interested to stumble upon an article in The Daily Home this week that profiled a brother and sister born with a rare birth defect. Both siblings were born with facial disfigurements known as craniofacial disorder. Every year more than 100,000 infants are born with the disfigurement. Not all of those victims experience the same problems, however, as the scope and severity of the disfigurement can vary dramatically from one victim to another.

As with many different birth injury terms, craniofacial disorder actually refers to a range of problems, all of which cause some sort of abnormality in the face. Usually the problems are caused by abnormal growth of soft tissue or bone in the face or skull. In some situations the problem is caused by a birth defect that develops early on in the pregnancy, often rooted in genetics. At other times the disorder is brought about by a preventable birth injury, usually as a result of trauma or a disease.

This recent article profiled a family that is working hard to raise awareness about craniofacial disorder. Both of the family’s children—a 14-year old girl and her 12-year old brother—were born with the abnormality. The younger boy has a more severe version of the problem, having had over 30 surgeries in his young life already to deal with the complications. The girl’s problems are less severe but still significant. She has already had 7 different surgeries. Both children have more operations to come to correct the continuing problems connected to the disorder.

The long-term effects of problem are much more than just cosmetic. For example, when the young boy was born he was forced to spend the first months of his life in the hospital. His nostrils were not completely formed when he was born, and he could not suck on a bottle or pacifier. In addition he had hearing and speech problems as he grew older. The older sister also had hearing and speech issues as a result of her condition but the problem were mild compared with those faced by her brother.

The family remarked that they were fortunate to have been able to access world class surgeons and scientists throughout the treatment process. The parents explained that they continually visit with physicians at various hospitals and universities nearby as the children have more and more work done to improve their development. One surgeon involved in caring for the boy noted, “the objective is a functional outcome—the ability to breath, chew and speak and pronounce words—but one benefit will be cosmetic and enhance his psychosocial well-being.

Our Chicago birth injury lawyers appreciate the effect that these and other injuries can have on the social and psychological development of the involved children. Many children who go through traumatic births and have nerve damage lose the ability to use some their limbs. Cerebral palsy victims often cannot control certain bodily movements. Besides the functional problems these children face, the effect that these issues have on the overall well-being of the victims must also be remembered. Fellow children rarely understand how and why their classmates are different. Any deviation from the norm in schoolyards, cafeterias, and parks often means a life of teasing, taunting, and confusion.

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Medical malpractice damage caps would have significant implications for all birth injury victims. That is why our Chicago birth injury lawyers work hard to fight these efforts at “tort reform” which would constitute an egregious takeaway of local victims’ legal rights. The Illinois Supreme Court has also already found that these caps represent an unconstitutional breach of the separation of powers. The ruling has not stopped proponents from continuing efforts to force tort reform measures through. Many are pushing federal legislation which would impose caps on all states—a breach of basic federalist principles.

Damage caps are so lucrative for big defendants companies and corporations that they are also trying to implement the caps in non-legislative ways. For example, Lawyers.com recently published a story explaining two high-profile state cases regard nursing home arbitration clauses where damage bans were involved. Our Chicago nursing home abuse lawyer John J. Perconti was interviewed for the story.

The article was spurred by two recent Florida Supreme Court decisions which are being hailed as important wins for nursing home residents and their families. At the heart of both cases was the issue of whether arbitration clauses could include limits on damages. In Shotts v. OP Winter Haven, the family of a resident who died due to nursing home neglect sued to have a clause stricken in its arbitration agreement which placed an outright ban on the arbiter awarding punitive damages. The second case, Gessa v. Manor Care of Florida was similar in that the arbitration clause at issue banned punitive damages. But that contract also imposed a $250,000 cap on all non-economic damages. Both cases reached the state’ Supreme Court. Recently the court ruled that both clauses were unenforceable as violating the state’s public policy. The state has an interest in ensuring that its citizens do not have their basic legal rights signed away, particularly under the sensitive circumstances like the emotional process of moving a loved one to a nursing home.

These ruling are only binding in Florida state courts. However, the findings could act as a warning to all nursing homes nationwide which may have been thinking about trying to limit damages in this way. As Attorney Perconti explained for the article, “These opinions should deter nursing homes in other states from imposing damage caps in their agreements.” Illinois nursing homes had yet embraced these caps in arbitration clauses. Yet, had these Florida decisions gone the other way, it is not at all inconceivable to believe that facilities in our area might have taken it as a sign that they should also try to withhold redress to families that they victimize via use of these arbitration clauses. Some local homes may still try to do so. If they do, John Perconti explains that our courts would also be likely to find them unenforceable because “they would violate Illinois public policy and undermine the remedies set forth in the Illinois Nursing Home Care Act.” This important piece of state legislation seeks to protect local residents from Illinois nursing home abuse and allows victims certain avenues of redress. The bill cannot be thwarted by nursing home companies who force resident to sign away those rights at admission.

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