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The Loss Of Nursing Home Patients’ Rights: New Illinois Appellate Court Decision Upholds Arbitration Clause In Negligence Cases

A recent Illinois Appellate Court decision may prove to be a major roadblock for injured nursing home residents who wish to pursue their case against the facility in court.  In Fosler v. Midwest Care Center II, Inc., the Illinois Appellate Court upheld the validity of mandatory arbitration clause signed by an injured nursing home resident’s daughter at the time of her admission– specifically saying that the Federal Arbitration Act (FAA) trumps the Illinois Nursing Home Care Act.

This is a dramatic shift in the way Illinois Court’s have interpreted Illinois law.  Previously, it was widely held in Illinois that arbitration agreements– where a dispute related to negligent care would be resolved via an arbitrator as opposed to a jury trial– were invalid.  According to Fosler, this is no longer the case.

The Loss Of Nursing Home Patients’ RightsIllinois like other states had adapted its own laws to protect nursing home residents.  In Illinois, the Nursing Home Care Act specifically nullifies any arbitration provision of the admission agreement, supporting an injured resident’s right to a jury.  According to section 3–606 of the Nursing Home Care Act, “[a]ny waiver by a resident or his legal representative of the right to commence an action under Sections 3–601 through 3–607, whether oral or in writing, shall be null and void and without legal force or effect.” 210 ILCS 45/3–606.  The Act emphatically states that a person injured due to nursing home negligence was entitled to a jury trial.

Due to the strong language of the Nursing Home Care Act, many Illinois nursing homes chose to remove arbitration clauses entirely from new admission paperwork as they were generally considered to be worthless.  This is no longer the case.  If this decision remains good law, mandatory arbitration clauses will become commonplace in Illinois nursing homes and the landscape of nursing home litigation in Illinois will be forever changed– in my humble opinion for the worse.

Nursing Home Arbitration Clauses

An arbitration clause takes the decision of how much money— if any — an injured party is receive out of the hands of a jury.  In an arbitration setting, one person (who is frequently pre-selected by a nursing home) determines the damages to be awarded to an individual or family.  In addition, many arbitration clauses specifically limit the amount an arbitrator may award to an injured party.


Marie Fosler, by Janice Saxton, Attorney-in-Fact v. Midwest Care Center II, Inc., d/b/a Fair Oaks Rehabilitation and Health Care Center, Brenna Kolk, and Tonya Nielsen, 08–L–147, Ill.App. (2nd Dist)

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