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Levin & Perconti’s Chicago Medical Malpractice Lawyer John J. Perconti Interviewed About Nursing Home Arbitration Agreements

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.

See Our Related Blog Posts:

Standing Up for Seniors Report: Forced Arbitration

Legislation Introduced to Remove Unfairness of Mandatory Arbitration Clauses