The Art of Investigation: The
Impact of a Facility’s Investigation
on Future Litigation
By: Matthew F. Tibble
and
Donald Patrick Eckler
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LTC Facilities have become targets with
personal injury attorneys.
Trend is for personal injury attorneys to
become involved with the handling of claims
very early.
Increase in the dollar value of verdicts and
settlements relating to LTC Facilities in all parts
of Illinois.
LTC Administrators and their staffs can take
affirmative steps during their investigation to
prevent or limit potential claims.
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Specialized attorneys.
Involved very early in the process.
Obtaining resident charts immediately.
Retaining an RN who reviews the chart for
violations of the Illinois Nursing Home Care Act.
Reaching out to former employees of the LTC
Facility to obtain statements.
Getting involved with and obtaining the
documents from the IDPH concerning their
investigations.
Aggressive and relentless.
When you place a loved one in the care of a nursing
home, you expect that their needs will be met and that
they be cared for. Unfortunately, negligence and
outright abuse in nursing homes are all too
common. Although many state and federal regulations,
such as the Illinois Nursing Home Care Act , have been
established to protect the elderly in these settings,
gross violations occur every single day, tragically
compromising the health, well-being and dignity of
some of our society's most vulnerable members.
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LTC resident William (84 years old) was left
“unsupervised” in the cafeteria while CNAs were
putting other residents to bed in the LTC Facility.
William, who had obtained cigarettes and matches
from an unknown source, dropped a lit match on
his lap and set himself on fire. The chart stated
that William had a prior instance of violating the
facilities’ smoking policy and that William
required direct supervision while smoking. As a
result of the fire, William sustained burns to over
30% of his body, which allegedly led to his death
22 months later.
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LTC resident Roberto (54 years old) was admitted
to the LTC Facility. Roberto was legally blind and
diagnosed with paranoid schizophrenia. The LTC
Facility placed Roberto in its secure unit on the 5th
floor. Roberto’s door had alarms and his windows
were properly restricted. Approximately a year
after arriving at the LTC Facility, Roberto had
adjusted to the facility and received medication in
accordance with his doctors’ orders. One spring
night, Roberto told a CNA he wanted to stay in his
room while the other residents went to dinner. A
CNA checked on Roberto an hour later and found
him missing. Roberto was found an hour later on
the ground outside the LTC Facility. He died
about a hour later.
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Resident’s Rights 210 ILCS 45/2-101 through
210 ILCS 45/2-114.
210 ILCS 45/2-107. “An owner, licensee,
administrator, employee or agent of a facility
shall not abuse or neglect a resident. It is the
duty of any facility employee or agent who
becomes aware of such abuse or neglect to
report it as provided in ‘The Abused and
Neglected Long Term Care Facility Residents
Reporting Act.’”
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210 ILCS 45/3-601: “The owner and licensee
are liable to a resident for any intentional or
negligent act or omission of their agents or
employees which injures the resident.”
210 ILCS 45/3-602: “The licensee shall pay the
actual damages and costs and attorney's fees to
a facility resident whose rights, as specified in
Part 1 of Article II of this Act, are violated. “
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OBRA – Omnibus Budget Reconciliation Act of
1987 (42 CFR 483).
Illinois Nursing Home Care Act (210 ILCS 45)
Illinois Assisted Living and Shared Housing
Act (210 ILCS 9/1)
Illinois Administrative Code.
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Illinois Department of Public Health (IDPH) –
www.idph.state.il.us
United States Center for Medicare and
Medicaid (CMS) Database on Nursing Homes –
www.medicare.gov/nursing
Illinois Department of Aging –
www.state.il.us/aging
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Single violation of a resident’s rights can mean
a violation of the statute.
One minor charting or staffing issue can make
your facility liable for compensatory damages
and attorney’s fees.
Important that you take steps during your
investigation to not create documents that
establish a violation.
Important that you know what you are doing
and that you are protecting your facility’s
rights during an investigation.
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Insurance companies will try to avoid paying
these types of claims.
Declaratory Judgment lawsuits can occur.
Reservation of rights letters occur frequently in
these types of cases
Some damages available under the Illinois
Nursing Home Care Act might not be covered
by insurance.
The attorney’s fees available under the Illinois
Nursing Home Care Act might not be covered
by insurance.
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Have an incident/accident response plan in
place.
Have an investigation procedure in place.
Take ownership and control of an
investigation.
Know the strengths and weaknesses of your
staff.
Designate chosen staff members with
specific responsibilities when performing
investigations.
Keep information for former staff.
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Ensure staff understands that only the designated
staff members should address issues concerning an
incident and investigation.
Craft and control the messages and statements
coming from your LTC Facility.
Have a relationship with an attorney who
specializes in defending LTC Facilities.
Have a set procedure in place to notify your
insurance broker/carrier.
Check with your insurance broker to ensure that
your coverage includes attorney representation for
investigations, administrative actions and
litigation.
Three investigation areas
where the steps you take can
limit your facility’s potential
exposure to lawsuits.
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Interviewing witnesses.
Recording statements and information in
resident charts.
Contact with residents or their families
post-incident.
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Before interviewing anyone, tour the area where
the incident happened to gain your own
understanding of what occurred.
Identify key personnel and residents who have
information concerning the incident.
Understanding the strengths and weaknesses of
the person you are interviewing.
Take notes only to the extent that you need them
to recall what was said by whom.
Try to avoid taking notes while the interview is
occurring, but draft them immediately afterward.
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Designate one person to conduct the interviews.
Understand that any notes you take might be
used against your facility, so only record the
information that is essential for your memory
and in a manner that is good for facility.
Ask leading questions based on your
observations.
To the extent possible, do not make the interview
a threatening procedure for the interviewee.
Take your time, exhaust the interviewee’s
memory and understand what that person
knows.
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Understand that in every circumstance you must
record all incidents and accidents involving
resident safety or injury in a chart.
Develop an approved protocol at your facility for
how incidents are to be recorded.
Conduct in-house training on that protocol.
Ensure skilled staff are the only persons recording
the information concerning incidents in charts.
Do not just have staff or residents write statements
to be included in the chart.
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Review entries in charts concerning incidents
to ensure that you understand what is being
recorded and why.
Advise your skilled staff to only record factual
information.
Stay away from words like “understaffed,”
“abused” or “neglected.”
Stay away from phrases like “left unattended”
or “left unsupervised.”
Understand that everything in the chart will be
scrutinized following an incident.
Admission: Any statement or assertion made
by a party to a case and offered against that
party; an acknowledgment of facts are true.
Statement: A verbal assertion or nonverbal
conduct intended as an assertion.
Black’s Law Dictionary, 8th Addition
Example of the difference between a Statement and
an Admission:
Resident A sustained an injury falling in a LTC
Facility. During the investigation, the LTC
Administrator interviews Resident B. Resident B
states that she saw Resident A slip on water
leaking from a water fountain in the LTC Facility.
Based on interview with Resident B, the LTC
Administrator recorded in Resident A’s chart that
“Resident A slipped on water leaking from water
fountain.”
During the litigation that followed the incident,
attorney for Resident A moved for a legal
ruling on the basis that the LTC
Administrator's report of the incident in the
chart constituted an admission of neglect by
the LTC Facility.
As a result of comments made by the court
indicating that it was inclined to agree with
Resident A’s attorney, LTC Facility had to
move to settle the matter before court could
enter an adverse ruling.
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Admission: “Resident A slipped on water
leaking from the water fountain.”
Statement:
“Resident B reported to me that
she believes that Resident A slipped on water
leaking from the water fountain.”
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Craft and control the messages and statements
coming from your LTC Facility.
Ensure staff understands that only the designated
staff members should address issues concerning an
incident and investigation.
Designate a point person from the LTC Facility to
handle these issues and make sure she knows what
she is doing.
Continue to treat the resident and their family with
dignity and respect regardless of what they state to
you or accuse your facility of doing.
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Understanding that everything discussed with
a resident and their family post-incident may
be used against you in subsequent litigation.
Understand that a resident’s family is going to
take notes concerning everything you or your
staff says to them post-incident.
Indicate that you feel sorry that the incident
occurred, but do not admit that your LTC
Facility caused or contributed to the incident.
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Instances when you should absolutely get an
attorney involved:
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Request for a face to face meeting with you and your
staff to discuss the incident.
Resident or resident’s family makes statement about
a lawsuit.
Resident or resident’s family makes a scene at your
facility.
Requests for the chart.
 In instances where the chart is requested, best practice
is to have an attorney review it before producing it.
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Contacted by an attorney for the resident.
Contacted by the IDPH regarding the incident for a
no-knock type investigation.
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To be entitled to the protection of the attorneyclient privilege, a claimant must show that the
statement originated in confidence that it
would not be disclosed, was made to an
attorney acting in his legal capacity for the
purpose of securing legal advice or services,
and remained confidential. Rounds v. Jackson
Park Hosp., 319 Ill.App.3d 280, 285-86 (1st Dist.
2001).
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The general rule with respect to discovery in Illinois is
stated in the heading to Supreme Court Rule 201(b)(1): “Full
disclosure required.” In Illinois the assertion of privilege is
governed by Supreme Court Rule 201(b)(2), which in
relevant part states:
All matters that are privileged against disclosure in the
trial, including privileged communications between a
party or his agent and the attorney for the party, are
privileged against disclosure through any discovery
procedure. Material prepared by or for a party in
preparation for trial is subject to discovery only if it
does not contain or disclose the theories, mental
impressions, or litigation plans of the party’s attorney.
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What does that mean?
The communication that is sought to be
protected must be made privately.
The communication cannot be shared
with others not covered by the privilege.
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In
the
corporate
context
only
communications with those within the
“control group” are covered by the
attorney-client privilege. Consolidation
Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103,
118-19 (1982).
The “control group” is a small group of
people.
The Illinois courts hold that the following are in the
“control group”:
(1) the agent served as an advisor to top management of
the corporate client;
(2) this advisory role was such that the corporate principal
would not normally have made a decision without the
agent's advice; and
(3) the agent's opinion or advice in fact formed the basis of
the final decision made by those with actual authority
within the corporate principal. Archer Daniels Midland
Company, 138 Ill.App.3d at 279-280.
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In order to determine who is and who is not in
control group Illinois courts have looked at the
role that the individual played in the
organization and not that individual’s title. In
Knief v. Sotos, 181 Ill.App.3d 959, 964 (2nd Dist.
1989), the court held that a head waitress and a
bar manager were not in the control group with
respect to litigation decisions, and therefore,
those individuals’ communications with
counsel representing the restaurant/bar were
not protected from disclosure.
Communications with the following
individuals are likely covered by the attorneyclient privilege:
1. Board Members;
2. C-Level officers
3. Individuals just below C-Level Officers in the
area in which they have authority
4. Insurers and representative of insurers. People v.
Ryan, 30 Ill.2d 456 (1964).
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Communications with the following
individuals are likely not covered under the
attorney-client privilege. This is a nonexhaustive list of examples:
1. insurance brokers;
2. employees without decision making authority;
3. the patient and the patient’s family; and
4. representatives of the patient and the patient’s
family
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Not every disclosure from client to attorney is entitled to
protection from discovery. The attorney-client privilege protects
only those disclosures necessary to obtain informed legal advice
which might not have been made absent the privilege. Cangelosi v.
Capasso, 366 Ill.App.3d 225, 228-29 (2nd Dist. 2006).
Furthermore, the attorney-client privilege does not protect
communications primarily regarding business advice. CNR Inv.,
Inc. v. Jefferson Trust & Sav. Bank., 115 Ill.App.3d 1071, 1076 (3rd
Dist. 1983). Thus, for the privilege to apply, the confidential
communications must be primarily legal in nature.
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The work product doctrine protects “material
prepared by or for a party in preparation for
trial”
that
contains
“theories,
mental
impressions, or litigation plans of the party’s
attorney.” See Ill. Sup. Ct. Rule 201(b)(2).
Materials are protected if they are prepared for
any litigation or trial as long as they were
prepared by or for a party to the subsequent
litigation. Fischel & Kahn, Ltd v. van Straaten
Gallery, Inc. 189 Ill.2d 579, 591 (2000).
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What constitutes “work product” under Illinois Rules is narrower
than what is protected from discovery in the federal system.
Milynarski v. Rush-Presbyterian St. Lukes Med. Ctr., 213 Ill.App.3d
427, 432 (1st Dist. 1991).
Illinois only protects “opinion work product,” i.e., matter which
discloses the theories, mental impressions or litigation plans of a
party’s attorney. Id. Examples of documents prepared “in
preparation for trial” include:
Memoranda made by counsel of his impression of a prospective
witness, as distinguished from verbatim statements of such witness,
trial briefs, documents revealing a particular marshaling of the
evidentiary facts for presentment at the trial, and similar documents
which reveal the attorney's ‘mental processes' in shaping his theory
of his client's cause. Monier v. Chamberlain, 35 Ill.2d 351, 359-60
(1966).
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Generally, where there is a mixture of
unprivileged factual material and protected
opinion work product such as “attorneys’ notes
and memoranda of oral conversations with
witnesses or employees,” then these are not
routinely discoverable unless the party seeking
discovery can show that “it is absolutely
impossible to secure the factual information
from other sources.” Mlynarski, 213 Ill.App.3d
at 433.
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Because of the limits of work product
doctrine, any statements of employees or
other witnesses to an incident taken
should be taken by counsel so that the
attorney’s mental impressions are
intermixed with the facts contained,
making it very difficult to disclose.
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Many facilities have chosen to use arbitration
clauses as means to insulate themselves from
runaway jury verdicts.
It is our view that while there is good reason to
be concerned about jury verdicts, arbitration
may not be the best way to insulate from that
risk.
There are several considerations that should be
made before deciding to require arbitration.
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First, as evidenced by the spate of recent
decisions from both the Illinois courts and the
federal courts, including the United States
Supreme Court, whether an arbitration clause
is enforceable is one of the first hurdles the
proponent of arbitration must overcome.
This is particularly so in the context of
contracts with long term care facilities.
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Second, if successful in navigating a case to
arbitration, the costs of the arbitration process
can be quite high.
Third, one of the common reasons for choosing
arbitration is its speed. However, a speedy
result is not necessarily the best result.
Fourth, if a party is dissatisfied with the
outcome of an arbitration there is usually no
meaningful right to appeal the decision of an
arbitrator.
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The principal advantage of arbitration in any
context is that it can be made a confidential
process.
If confidentiality is the primary litigation
strategy, and it could be a legitimate concern in
an effort to make a facility less likely to be
sued, then arbitration may be a way to proceed.
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In Marmet Health Care Center, Inc. v.
Brown, the United States Supreme Court
held that a West Virginia state court had
improperly held that the Federal
Arbitration Act (“FAA”) does not apply
to consideration of the enforceability of
arbitration agreements in the face of a
West Virginia statute that barred such
agreements.
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In Curto v. Illini Manors, the Third District held
that the trial court did not err in refusing to
enforce an arbitration provision in a nursing
home contract signed by a wife who brought
an action based upon Wrongful Death Act,
Survival Act, violation of the Nursing Home
Care Act, and Family Expense Act as a result of
the death of her husband.
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The Curto court found that the wife, who
executed the agreement as representative of her
husband, was not the express or implied actual
agent of the husband in signing the agreement.
The Curto court left open the possibility to
prevail in showing actual agency, but in this
case there were no facts to support that
conclusion. The Court also held that the wife
was not the apparent agent of the husband.
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Ironically, and indicative of how hostile Illinois
courts are to arbitration clauses, the Curto court
held that the wife’s personal claims were also
not subject to the arbitration agreement,
because she signed the agreement in her
capacity as representative of her husband, not
individual capacity.
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This case is interesting because it seems to
conflict with the ruling in Fosler v. Midwest Care
Center II, 398 Ill.App.3d 563 (2010), which held
that an arbitration agreement executed by the
patient’s daughter was enforceable under the
FAA pursuant to the preemption doctrine. It is
important to note that the issue of preemption
does not appear to have been raised by the
parties and was not addressed by the Curto
court.
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In Carter v. SSC Odin, the Illinois Appellate
Court, Fifth District addressed the applicability
of two arbitration agreements between a
nursing home and its resident following
remand from the Illinois Supreme Court after
reversal of the trial court and the Fifth District.
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The Supreme Court ruled that the Federal
Arbitration Act preempted the Nursing Homes
Care Act and remanded to the Fifth District to
consider the following issues: whether the parties’
arbitration agreements evidence a transaction
involving interstate commerce within the meaning
of Section 2 of the FAA, whether the arbitration
agreements are void for a lack of mutuality, and
whether the arbitration agreements apply to the
plaintiff's claim under the Wrongful Death Act.
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Addressing these issues in turn, the Carter court first
held that because the activities of the nursing home
affected interstate commerce, the FAA applied.
With respect to mutuality, the Carter court ruled that
because the arbitration clause only applied to claims of
$200,000 and over, there was no mutuality as the
claims the nursing home would make against the
patient would certainly be less than $200,000, not
requiring arbitration, and the claims made by the
patient against the nursing home would certainly be
greater than $200,000 requiring arbitration.
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Finally, with respect to the claims under the Wrongful
Death Act, the Carter court held that because one of the
arbitration agreements was signed by the deceased and
the other by the personal representative of the estate in
her capacity as a representative of the deceased, the
arbitration agreements did not apply to the claims
under the Wrongful Death Act. The Court so held
because claims under the Wrongful Death Act belong
to the beneficiaries and they did not agree to arbitrate.
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Pretzel is a mid-sized law firm that has
represented clients in Illinois, Indiana and
Wisconsin since 1946.
Pretzel specializes in representing professionals in
litigation and developing business strategies avoid
litigation.
Pretzel represents professionals in administrative
actions.
Pretzel represents professionals in arbitrations,
mediations, negotiations and other forms of
dispute resolution.
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Pretzel has a practice group that focuses on
defense of LTC Facilities in civil litigation and
administrative actions.
Pretzel has effectively represented clients
during investigations conducted by the Illinois
Department of Public Health.
Pretzel has an extensive history in successfully
defending claims against LTC Facilities
brought by residents and members of
resident’s families.
www.pretzel-stouffer.com
Questions
Matthew Tibble
Pretzel & Stouffer, Chartered
mtibble@pretzel-stouffer.com
312-578-7445
Donald Patrick Eckler
Pretzel & Stouffer, Chartered
deckler@pretzel-stouffer.com
312-578-7653