Illinois Supreme Court Decides Arbitration Rights in Nursing Home Death Case; Carter v. SSC Odin Operating Co.

Sue Carter brought Joyce Gott to the Odin Nursing Home in 2005. Carter signed an arbitration agreement as Gott’s “legal representative.” Gott also signed an arbitration agreement with Odin after she was admitted to the nursing home facility.

Carter’s lawsuit filed against Odin claimed that the nursing home’s negligence caused Gott to die from gastrointestinal bleeding, anemia and respiratory failure.

Count I of Carter’s complaint was brought for Gott’s personal-injury claim preserved by the Illinois Survival Act. Count II of the complaint was for Gott’s heirs under the Illinois Wrongful Death Act.
This case went to the Illinois Supreme Court on the anti-waiver provisions in the Illinois Nursing Home Care Act and on the additional issue of whether arbitration was blocked or pre-empted by the Federal Arbitration Act.
The case was returned to the lower court and then found its way to the Illinois Supreme Court again as to a different dispute that had to do with the survival claim and arbitration.

Odin argued that Carter was obligated to arbitrate Count II, the wrongful death case, because the claim was “an asset of the deceased estate.” Referring to §2.1 of the Wrongful Death Act, the Supreme Court rejected that argument explaining that the language of the statute does not treat a wrongful death action as an asset of a decedent’s estate, as Odin had argued.

The Supreme Court added that because Carter signed the arbitration agreement solely as Gott’s “legal representative” and Count II seeks compensation for losses sustained by Gott’s family, Carter was not obligated to arbitrate the wrongful death claim.

The court stated that, “It is clear that under Illinois law, a wrongful death claim may only be brought by the personal representative of the decedent. Moreover, Section 2.1 of the Wrongful Death Act specifically references a cause of action for wrongful death as being an asset of the decedent’s estate . . . ”
However, the court wrote that the language in Section 2.1 of the Wrongful Death Act and the language in the statute as a whole, “does not evince an attempt by the legislature to treat a wrongful death action as an asset of the deceased’s estate for the purposes that the defendant urges, i.e., to allow the deceased to control the forum and manner in which a wrongful death claim is determined.” The court rejected the defendant’s argument that the wrongful death claim is an asset of Gott’s estate that should limit the arbitration agreement.

The court concluded that 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 suggest 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. Even though the plaintiff signed the 2005 arbitration agreement, she did so only as Gott’s legal representative. Accordingly, the plaintiff is bound to arbitrate only to the extent that the plaintiff is acting in Gott’s stead.

Carter v. SSC Odin Operating Co., 2012 IL 113204 (September 20, 2012).
Kreisman Law Offices has been handling nursing home abuse cases, bed sore cases, sepsis cases, neglect cases and medical malpractice cases for individuals and families for more than 36 years, in and around Chicago, Cook County and its surrounding areas, including Chicago (Roscoe Village), Schaumburg, Hanover Park, Glendale Heights, Lombard, Downers Grove, Summit, Burbank, Vernon Hills, Crystal Lake and Algonquin, Ill.